Copyright registration is vital to enjoying the fullest benefit of copyright ownership. Critically, registration is a prerequisite to filing a copyright infringement claim. In addition, registration may be a prerequisite to recovering statutory damages, i.e., being entitled to a potentially substantial award of damages without having to establish your own damages or the infringer's profits. Therefore, the date on which a court recognizes a copyright registration as effective impacts both whether a copyright owner has standing to sue and whether he or she may enjoy statutory damages.
While copyrights exist at the moment of authorship, a copyright is not registered unless the owner takes further action. A prerequisite to registration is the filing of a copyright application. Expedited applications for registration cost approximately $760. Non-expedited applications cost approximately $35-65. As such, if one needs to file an expedited application for registration in order to receive word on registration quickly (and if a number of applications in one's portfolio require registration), the cost differential is considerable and, for large portfolios, enormous. But just when is the registration effective: When filed or when actually registered? If application filing is the only thing required to effect standing to sue, then the impact is commensurately enormous if all that is required is the filing of a non-expedited application: merely filing the non-expedited application gets one the ticket to sue potentially and may also cost-effectively yield (depending upon certain circumstances) the coveted early filing date for statutory damages purposes.
The U.S. Court of Appeals for the Ninth Circuit has held that, at least within the Ninth Circuit, mere application for registration is sufficient. In Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612 (9th Cir. 2010), the Ninth Circuit determined that "the application approach better fulfills Congress's purpose of providing broad copyright protection while maintaining a robust federal register." 606 F.3d at 619. In describing the application approach, however, the Ninth Circuit also discussed different approaches in the various circuits, some of which require actual approval and registration of a copyright application as a precondition of suit, and asked, "Is a copyright registered at the time the copyright holder's application is received by the Copyright Office (the "application approach"), or at the time that the Office acts on the application and issues a certificate of registration (the "registration approach")? Our sister circuits have split in answering this question. For instance, the Fifth and Seventh Circuits (which include the states of TX, LA, MI and WI, IL, IN, respectively) have adopted the application approach . . . The Tenth and Eleventh Circuits (which include the states of UT, WY, CO, NM, KS, OK and AL, GA, FL, respectively) have adopted the registration approach." Id. at 615.
For large copyright portfolios, this jurisdictional split is crucial. Given the significant cost difference between expedited and non-expedited copyright applications, there is meaningful strategic thinking required about where to bring suit against accused infringers.
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.
