Supreme Court Favors “Registration Approach” Over “Application Approach”
A civil action for copyright infringement cannot commence in the United States until the Copyright Office registers a copyright. On Monday, March 4th, The Supreme Court resolved a circuit split regarding whether such a suit could be brought before the Copyright Office granted registration. The Court’s unanimous decision will affect the timing of when a copyright infringement suit may be brought. Statute of limitation concerns should not arise if the copyright owner acts prudently.
Fourth Estate centered on the interpretation of §411(a) of the Copyright Act. §411(a) requires that “registration of the copyright claim has been made” to file an infringement lawsuit. The dispute was whether language in §411(a) referred to submission of a copyright application or registration by the Copyright Office. These two approaches are known respectively as the “application approach” and “registration approach.”
Fourth Estate Public Benefit Corporation (Fourth Estate) sued Wall-Street.com (Wall-Street) for copyright infringement while Fourth Estate’s news articles were awaiting approval by the Copyright Office. Fourth Estate reasoned that §411(a) intended for copyright registration to be “made” when the registration application was filed. The reasoning was based on other provisions of the Copyright Act which tied “make registration” to the action of the copyright holder instead of the Copyright Office.
Preregistration Exceptions Highlighted by the Court
The Court found Fourth Estate’s interpretation defective both in the context of §411(a) and in Congress’ reaffirmation of that section in the 1976 Copyright Act. The Court also highlighted the inclusion of specific preregistration exceptions as evidence of Congressional intent to require copyright registration in all other instances.
The exceptions under §408(f)(2) allow preregistration for types of works with a history of predistribution infringement. Movies, sound recordings, musical compositions, books, computer programs (including video games), live broadcasts, and advertising and marketing photographs are works eligible for preregistration. A suit for copyright infringement may be brought after preregistration is made. The copyright owner must register the preregistered work for full registration within a month of known infringement and no later than three months after publication. If not, a court must dismiss a copyright infringement action that occurred before publication and within two months after publication.
The Court also relied on another notable exception within §411(a) as evidence in favor of the registration approach. A civil action may be brought once registration is refused, if a copy of the complaint is served on The Register of Copyrights. The Court explained that the exception would be unnecessary if Congress intended the application approach for copyright infringement suits.
Implications for Copyright Owners & Attorneys
There are practical implications to the decision, which the Court attempted to speak to. Copyright protection attaches inherently upon creation of a work and protects those works and its owners from infringement. The Court reasoned that registration of works does not alter those rights. An owner may still recover for past infringement that occurred prior to registration.
The related concern for copyright owners is the statute of limitations. The statute of limitations for copyright infringement is generally three years from notification of the infringement. However, the Copyright Office is known to be underfunded and slow to grant registration. A basic registration costs $35-$55 and takes seven months on average to be decided upon. An application may be expedited within five working days but the fee is $800. 94% of copyright applications are resolved within fifteen months. There should be little danger of failure to bring suit in a timely fashion if an applicant acts appropriately.
The more immediate issue is for copyright owners seeking a preliminary injunction. An injunction is impractical while waiting seven months or more for registration. The solution is to pay $800 and have the registration expedited by the Copyright Office. Unfortunately, copyright owners seeking injunctive relief may have to pay more for it.
Neither Fourth Estate, Wall-Street, or their amici were able to unearth cases that lead to concern on the statute of limitations issue. The Copyright Office continuing to be overwhelmed is the greater concern. The Court’s decision could have real consequences if Copyright Office registration times balloon past a year or eighteen months. Congress and/or the Copyright Office would need to implement an improved process at that juncture. Copyright owners must be able to bring suit without nearing the statute of limitations for those actions.