Many years ago, as a young lawyer, I experienced the utter joy of helping a client dismiss a copyright infringement lawsuit against it, because the plaintiff’s claimed copyright hadn’t yet been registered with the Library of Congress.

Seemed like an obvious error for the plaintiff to file when it did, since the federal copyright statute, according to my reading, required that registration be made (or denied) before a lawsuit could be brought, mere application was not enough.

Over the last twenty-five years, I’ve observed creative lawyers convince some courts that the language isn’t that clear, leading to a split in the various federal courts, some courts allowing suit based on the mere filing of an application.

So, imagine my surprise this morning, to read that the U.S. Supreme Court has decided the issue once and for all: It is actually pretty clear from the language of the statute, mere applications to register are not enough to allow filing a lawsuit.

That’s right, earlier today, the U.S. Supreme Court issued its decision in Fourth Estate Pub. Benefit Corp. v., Justice Ginsburg delivering the unanimous decision of the Court:

“Impelling prompt registration of copyright claims, 17 U.S.C. §411(a) states that ‘no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.’ The question this case presents: Has ‘registration . . . been made in accordance with [Title 17]’ as soon as the claimant delivers the required application, copies of the work, and fee to the Copyright Office; or has ‘registration . . . been made’ only after the Copyright Office reviews and registers the copyright?”

“For the reasons stated, we conclude that ‘registration . . . has been made’ within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.”

So, with that, at least two takeaways emerge.

First, those who create copyrightable expression have yet another incentive to promptly register the copyrights in their creative works.

Second, issues that seem obvious on their face can nevertheless, through creative lawyering, tie the courts up in knots for decades.

  • James Mahoney

    So, the question is: Could the copyright case that you successfully deep-sixed in your early years, for example, be brought again once the registration of the work in question was made? Or did the fact that they jumped the gun preclude them revisiting the case at a later date, post-registration?

    As I understand it, copyright exists at the moment of creation, BUT the ability to sue the pants off infringers in federal court does not exist until the work is registered. Praemonitus praemunitus.

    • stevebaird

      You’re a wise man James, thanks for engaging on this point! Yes, a copyright case can be brought after the registration issues, but since it was not applied-for before the alleged infringement and well after publication, even had they won on thel merits, remedies would have been more limited to just injunctive relief and actual damages (hard to prove) — the more plaintiff-leverage-friendly statutory damages and attorneys fees among copyright remedies were precluded from the delay, and given the time, effort and money spent on a losing argument, the case promptly settled.