The Supreme Court is clear: you should register copyrights before you have a problem.
On March 4, 2019, the U.S. Supreme Court ruled that copyright owners must before filing a lawsuit for copyright infringement. This resolved a conflict– a “circuit split”– between courts that disagreed on whether (i) copyright owners must simply apply for copyright registration before filing suit verses (ii) other courts that required an actual issued registration before filing a lawsuit.
In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court finally clarified the seemingly innocuous Section 411(a) of the Copyright Act, which states:
[N]o 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.
While straightforward at first glance, the decision finally clarified whether “registration . . . has been made” meant the date when (a) the copyright owner submitted their application for registration, or (b) the U.S. Copyright Office actually granted the registration.
After this case, it is now crystal clear: copyright owners across the U.S. must wait to sue until the Copyright Office grants the registration.
This presents a practical issue because “the average processing time for registration applications is currently seven months.”
This means that a copyright holder must typically wait an average of seven months after submitting an application before bringing an infringement suit.
Copyright holders wanting to file sooner can request expedited processing of their application via “special handling,” shortening the wait time. Copyright registration applicants requesting expedited consideration for must pay additional fee of about $800. Additionally, applicants can seek expedited processing only when there is pending litigation (or a good faith expectation of litigation).
The Copyright Act does carve out limited exceptions where a copyright registration applicant may file a lawsuit before the registration issues. These circumstances include situations where a copyright owner is preparing to distribute a work “vulnerable to pre-distribution infringement,” e.g. movies and musical compositions. Similarly, copyright owners may sue for infringement of a live broadcast prior to registration of the work. This makes sense because registering a live broadcast before it happens would be…. well impossible.
Apart from these limited circumstances, copyright owners must obtain the full and final registration before filing a lawsuit for infringement.
What This Means for Creators
It is now more important than ever to register copyrights– and to register copyrights early.
If a copyright owner discovers an infringer before registration, the owner has only two options: (1) wait the approximate seven-month period for registration to issue, and then sue or (2) pay a much higher fee to expedite the processing so they can sue– and stop infringers– faster.