Supreme Court Resolves Circuit Split, Confirms That Issuance of Copyright Registration Is Required Before Filing Infringement Suit

On March 4, 2019, the United States Supreme Court issued a unanimous opinion, finally resolving a long-standing circuit split in copyright law. The Court held that, in the vast majority of cases, a lawsuit for copyright infringement can only be filed after the U.S. Copyright Office actually issues a registration.

Prior to the Supreme Court’s decision in Fourth Estate Public Benefit Corp. v., LLC (No. 17-571), the Federal Circuit Courts were split as to the meaning of the language in the Copyright Act that “no civil action for infringement… shall be instituted until… registration of the copyright claim has been made.” 17 U.S.C. 411(a). Previously, some courts (such as the Ninth Circuit) only required a copyright claimant to show that an application had been filed to bring suit, while other courts (such as the Second Circuit) required that a registration actually be issued. This circuit split incentivized forum shopping, often forced copyright owners to file expedited (and thus more costly) copyright applications merely because of the district in which infringers were subject to personal jurisdiction and sometimes encouraged defendants to settle cases prematurely without knowing whether the plaintiff would ultimately obtain a copyright registration. The Court’s decision earlier this week clarifies the requirements for initiating a copyright infringement lawsuit.

Given the amount of time it takes for the Copyright Office to process new applications, potential plaintiffs should plan ahead. Copyright owners should always endeavor to identify works that are potentially important, significant or valuable (and likely to be copied) and register them immediately upon publication – or even before publication. Prompt registration of a copyright also grants an important additional benefit (in addition to being required for filing a lawsuit) – if registration is obtained before or within three months of publication of a work (or prior to infringement), a copyright owner can seek statutory damages and attorney’s fees in infringement actions.

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