On March 4, 2019, the U.S. Supreme Court held that parties seeking to institute copyright infringement litigation must do more than merely apply to register their work with the Copyright Office prior to filing suit. In Fourth Estate Pub. Benefit Corp. v. Wall-Street.Com,1 the Court ruled that such litigation must await the Copyright Office's decision either granting or denying the application for registration. The opinion resolves a circuit split on the meaning of language in the Copyright Act that requires "registration" before litigation. 17 U.S.C. §411(a). As a practical matter, the decision may weed out some meritless copyright claims and slow the pursuit of others.
Before the Supreme Court's decision, the Fifth and Ninth Circuits had interpreted the Copyright Act to allow a copyright claimant to file suit for infringement immediately upon applying to register their work.2 The Tenth and Eleventh Circuits had held that mere application was not enough, and that a determination by the Copyright Office either registering the work or refusing registration was required.3 Writing for a unanimous Court, Justice Ginsburg said: "We hold… that registration occurs, and a copyright claimant may comment an infringement suit, when the Copyright office registers a copyright."4 In other words, a copyright claimant must await a decision from the Copyright Office prior to commencing litigation.
The opinion is likely to deter at least some meritless copyright litigation. Parties seeking to claim rights in material that may not be protected by copyright will no longer be able to race to court upon the mere filing of an application for registration with the Copyright Office. Those parties may ultimately decide a case is not worth pursuing if the Copyright Office refuses to grant registration. Cf. Ribeiro v. Epic Games, Inc., (C.D. Cal. 2019) (plaintiff filed infringement action based on application to register supposed copyright in short dance move, but the Copyright Office refused registration six weeks later).5
The registration requirement may also slow the pursuit of copyright litigation in those circuits that previously required only an application. On average, it takes the Copyright Office seven months from the time a party applies to register a work, for the Office to grant or refuse registration. Expedited treatment of an application is available for an additional $1350. But even then, the process can take half a month, on average, assuming all of the...
