On March 4, 2019, the United States Supreme Court resolved a split among the federal circuit Courts of Appeal on whether a copyright registration was required for the filing of a copyright infringement lawsuit. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019), the Supreme Court, in a unanimous ruling, held that the Copyright Act of 1976, a U.S. copyright owner cannot rely on a pending copyright application but must instead own a certificate of registration to file a copyright infringement lawsuit. Resolving a split among circuit courts, the Supreme Court accepted the “registration approach” followed by the Tenth and Eleventh Circuits, under which registration by the Copyright Office was required to proceed with a copyright infringement lawsuit, and rejected the “application approach” followed by the Fifth and Ninth Circuits, under which a pending copyright application was a sufficient basis upon which to file an infringement claim.

The rationale for the “application approach" was the concern that the registration process may result in copyright owners being barred under the 3-year statute of limitations from enforcing their rights. As the Supreme Court observed, this concern was overstated. The average copyright registration process takes approximately seven months, but copyright owners can expedite this process by paying an additional fee.

Key Takeaways

  • We recommend early filing of copyright applications to avoid a risk of delay if you discover infringement.
  • Early registration had additional benefits. A copyright owner cannot recover statutory damages or attorneys’ fees for copyright infringement if the copyright was not registered either within three months of publication of the copyrighted work or before the alleged infringement. 17 U.S.C. §412.
  • If you receive a cease and desist letter claiming copyright infringement, you should confirm that the sender owns a copyright registration.

The Intellectual Property Group at Barack Ferrazzano includes lawyers who have experience in all aspects relating to the development and protection of our clients’ copyrights. Please contact us to discuss any of these issues, or any other related issues.

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