Supreme Court Set To Decide When A Copyright Case Can Be Filed Once And For All

The U.S. Supreme Court is not only looking at an interesting trademark case, but also a copyright concern that has the potential to have a major impact on copyright infringement litigation.

On January 8, oral arguments were held in the case of Fourth Estate Public Benefit Corporation v., which concerns the important question of when a work is “registered” under copyright standards so that a plaintiff may sue for copyright infringement in federal court.

The Copyright Act requires that a work be registered before a copyright infringement case may be filed. The question that many judges have wrestled with is, when is registration made effective for that purpose?

It is an important case for the U.S. Supreme Court to take up, because there is a split among different federal court circuits. Some of those circuits have held that a registration is effective for the purpose of filing a copyright infringement case as soon as the copyright owner submits paperwork to the U.S. Copyright Office. Other circuits have taken the position that a copyright infringement action is not yet ripe until the U.S. Copyright Office takes action on a pending application.

17 U.S. Code 411(a) says, in part, that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.”