A copyright infringement action cannot “be instituted until preregistration or registration of the copyright has been made in accordance with the [Copyright Act].” 17 U.S.C. Section 411(a). The Copyright Act does not provide guidance on how “registration of the copyright claim” should be interpreted.

The result of this ambiguity is that the United States Courts of Appeal are split on whether a copyright holder must have a copyright registration in hand prior to commencement of an infringement suit, or whether to file suit a copyright holder must simply have submitted a copyright application.

The Tenth and Eleventh Circuits have held that a copyright suit can be filed only after a certificate of registration has been issued by the Copyright Office. The Fifth and Ninth Circuits have found that copyright registration exists as soon as the copyright holder has deposited the work with the Copyright Office and filed the completed application.

Whether Section 411(a) of the Copyright Act requires a copyright registration or simply filed a copyright application for registration is at issue in Fourth Estate Public Benefit Corp. v. Wall-Street.com. On June 28, 2018, the United States Supreme Court granted the petition for a writ of certiorari to answer the question of whether “registration of [a] copyright claim has been made” within the meaning of Section 411(a) of the Copyright Act means (1) when the copyright holder has filed a complete application for registration or (2) when the Copyright Office has responded to the complete application and issued a registration certificate.

When the Supreme Court received the petition for certiorari, the Justices requested an amicus brief from the U.S. Solicitor General. The Solicitor General recommended that the petition for certiorari be granted and recommended that the Tenth and Eleventh Circuit’s interpretation – that a registration certificate must be issued prior to filing a copyright infringement suit – be adopted.

The submission of a copyright application can be done quickly, whereas copyright registration requires the Copyright Office to examine the application and certify that the work qualifies for protection. The process of obtaining a registration takes several months – sometimes up to a year.

If the Supreme Court adopts the view of the Tenth and Eleventh Circuits, it will incentivize copyright holders to register their works earlier rather than later. It will also decrease the number of copyright infringement suits filed and delay the filing of such suits.

If the Supreme Court adopts the view of the Fifth and Ninth Circuits, it will be easier to file suit without being required to wait until the Copyright Office issues a registration certificate. At the same time, copyright holders may not be as incentivized to register their work until and unless an infringement occurs.

If you have questions about copyright law, Astrachan Gunst Thomas, P.C. can help. Contact Jim Astrachan at 410-783-3520 (jastrachan@agtlawyers.com) or Kaitlin Corey at 410-783-3526 (kcorey@agtlawyers.com).