Copyright is the exclusive right to reproduce, adapt, distribute, perform, and display works of original expression. These rights accrue upon creation of the work and a copyright registration is not required to own a copyright or acquire these rights.
U.S. Copyright Act
The U.S. Copyright Act, 17 U.S.C. 101, et seq. provides a means for registering copyrights with the U.S. Copyright Office, which is a part of the Library of Congress. The Federal registration process, while simple, can take nine to twelve months to complete before any Registration Certificate issues. The Copyright Act also provides various rights and remedies for copyright infringement, including statutory damages and attorney fee recovery. However, the Act also states
[N]o civil action for infringement of the copyright … shall be instituted until … registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. 411.
What Qualifies as Actual “Copyright Registration”?
Since 2010, the Supreme Court has viewed copyright registration as a pre-condition to bringing suit and claiming relief under the Copyright Act. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). The Court did not however clarify what constituted “registration of a copyright.” Must an actual registration certificate issue or is it enough for a copyright claimant to simply have a pending copyright application? Lower courts had been split on this issue. A number of courts found the presence of a pending copyright application sufficient to claim relief. Other courts interpreted the Copyright Act and Muchnick to require an actual copyright registration for a plaintiff to claim relief under the Copyright Act.
SCOTUS Unanimous Fourth Estate Decision
On March 4, 2019, the Supreme Court clarified this issue with its decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com. Fourth Estate produced online content which it licensed to others. Wall-Street.com was a former licensee that Fourth Estate claimed was infringing its copyrights. Fourth Estate filed suit claiming infringement based on what were, at the time, pending applications to register copyright in the allegedly infringed content. Defendant moved to dismiss arguing that the clear terms of the Copyright Act and Muchnick made actual registration of those copyrights a pre-condition to suit and the pending applications did not constitute “registration.” The district court agreed and granted the motion. On appeal, the Eleventh Circuit affirmed based on Muchnick, but also noted other courts disagreed. The Supreme Court took the case to resolve the split of authority.
Writing for a unanimous Supreme Court, Justice Ginsburg reviewed the language of the Copyright Act and considered the split in authority and held “registration” requires actual registration by the Copyright Office after examination of a properly filed application.
Impact of Decision
The Fourth Estate decision now settles the split among courts and makes it clear actual registration is required to bring a claim for damages under the Copyright Act. Given this decision, it is imperative that creators of original expressions such as publications, graphics, written materials, photos, music, even computer code, consider taking steps to register their copyrights with the U.S. Copyright Office to preserve their right to bring a claim for damages under the Copyright Act.
If you would like more information about copyright registration generally or to discuss your particular requirements, please feel free to contact me at mark.nieds@henlaw.com or by phone at 239-344-1153.