Supreme Court Holds that Copyright Owners Must Wait for Registration to Sue

A general view of The United States Supreme Court - July 10, 2018 in Washington, DC. -Getty-H 2018
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The U.S. Supreme Court unanimously ruled on Monday that copyright owners must wait for registration before pursuing infringement claims in court. The decision settles a circuit split wherein certain courts had previously held that merely applying for registration was enough to satisfy the statutory prerequisite for a lawsuit.

The opinion in Fourth Estate Public Benefit Corporation v. may influence the range and number of copyright lawsuits in the entertainment and media industry. In this case,  Fourth Estate licensed its journalism works to before the agreement was canceled. When articles weren't removed from the website, Fourth Estate filed suit, leading to a challenge over whether the plaintiff needed to wait until the Register of Copyrights either accepted or refused the application for registration.

The high court's review prompted several interested parties to weigh in on the controversy.

The Authors Guild, for instance, favored a reading of copyright law allowing applications as being sufficient. Anything short would amount to delay, which the Authors Guild wrote would have monumental impact on an author's ability to protect the fruits of their creative endeavors. Similarly, much of the music industry including publishers and recording labels argued that it was imperative that administrative delay not diminish anyone's attempt to seek judicial relief against publishers.

Public Knowledge, taking the opposite position, said there was a reason why Congress required registration before litigation, namely to maintain a comprehensive public record of ownership of copyrighted works.

When it comes to copyright lawsuits, many plaintiffs seek applications for registration just days before lodging a complaint in federal court. Except for limited circumstances, this will no longer be tolerated.

Supreme Court Justice Ruth Bader Ginsburg writes in the opinion (see here) that the "registration approach" is the "only satisfactory reading" of the relevant statute as she points to lawmaker-envisioned events like the Register refusing an application that would become "superfluous" under an "application approach."

Ginsburg acknowledges that registration processing times have increased from weeks to months over the years, but adds that administrative lag doesn't allow a curing of congressionally-composed text.

In an attempt to perhaps soothe worries from an entertainment industry concerned with piracy, Ginsburg also nods to the preregistration option open to certain works.

"In limited circumstances, copyright owners may file an infringement suit before undertaking registration," she writes. "If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement — notably, a movie or musical composition—the owner may apply for preregistration... Even in these exceptional scenarios... the copyright owner must eventually pursue registration in order to maintain a suit for infringement."