United States: U.S. Supreme Court Adopts "Registration Approach" For Copyright Infringement Actions

Last Updated: April 8 2019
Article by Valerie Brennan and David Brzozowski

The U.S. Supreme Court has announced in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC that copyright owners must wait for the Copyright Office to formally grant, or refuse to grant, a copyright registration before filing an infringement lawsuit. This decision settles a longstanding circuit split over when copyright owners can bring suit, with some circuits following the "registration approach," now confirmed by the Supreme Court, and others following the "application approach;" allowing infringement suits to proceed upon the copyright owner's filing of an application to register a copyright with the Copyright Office.

Writing for the unanimous Court, Justice Ruth Bader Ginsburg stated that while the "the statutory scheme has not worked as Congress likely envisioned," the registration approach adopted by the Court "reflects the only satisfactory reading" of the Copyright Act. In the decision, the Court eschewed concerns that in some instances the Copyright Office's delay may be so long that the statute of limitations for filing an infringement action may expire before the registration is issued by the Copyright Office. The Court pointed out that the average time for the Copyright Office to issue a registration is only around seven months, and that copyright owners can still recover certain infringement damages incurred before the registration of their work.

News of the Supreme Court's opinion was met with mixed views. Many major copyright owners chastised the decision as restricting a copyright owner's ability to protect a work. Others lauded the Supreme Court's decision, arguing that the requirement that a work be registered before copyright can be asserted in an infringement action can prevent unfounded and frivolous lawsuits.

Practical consequences of the Supreme Court's decision

The key takeaway from the Supreme Court's decision is to obtain copyright registrations as early as possible to avoid a delay in being able to assert the copyrights. The processing times involved in obtaining that registration will surely impact any ability to seek a temporary restraining order or preliminary injunction against a copyright infringer.

In cases where the normal processing time is intolerable, there is some concern that the Copyright Office's "special handling" service will be overwhelmed. That service is designed to be an expedited system that can grant a registration within five (5) working days. However, a large influx of expedited requests inspired by the Court's ruling seems likely to substantially delay that processing unless additional resources are committed.

What's next for copyright owners and the Copyright Office?

As the Supreme Court lamented in its decision, the predictable delays copyright owners will face before bringing infringement actions are not a "factor [that would] allow [the Supreme Court] to revise [the] congressionally composed text" of the Copyright Act. Speaking after the decision issued, Fourth Estate has called on Congress to "remedy the long delays currently experienced by copyright owners."

Of course, possible solutions Congress could implement to remedy this delay include increased funding for the Copyright Office to handle the anticipated influx of new copyright applications, or amending the Copyright Act to allow copyright owners to bring an infringement lawsuit prior to receiving a registration from the Copyright Office.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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