Registration or Refusal by Copyright Office Required to Sue for Copyright Infringement

On March 4, 2019, the U.S. Supreme Court decided that one portion of section 411(a) of the Copyright Act requires a copyright registration in order to file suit for copyright infringement and that a registration occurs when the Copyright Office registers a copyright. The court found that simply filing an application for copyright registration was not enough to meet the statutory requirement that a ‚Äúregistration . . . has been made” under 17 USC 411(a) prior to filing suit. Instead action by the Copyright Office on the application was necessary.

According the the Copyright Office, the average processing time for a copyright application is about six months. Therefore, this decision will delay the time until an owner of an unregistered copyright can file suit. Further, this decision may lead some plaintiffs to forgo ancillary copyright claims in suits where other claims predominate or are otherwise available.

Copyright owners should consider promptly registering their copyrights so they can take quick action to stop infringement when necessary and avoid a six month (or whatever is the then existing Copyright Office processing time) delay in filing suit while waiting for the Copyright Office to take action.

Section 411(a) also permits a lawsuit to be filed if the Copyright Office refuses registration. Therefore, some action by the Copyright Office on an application is usually necessary, subject to some exceptions, in order to file suit.

Case: Fourth Estate Public Benefit Corporation v. Wall-Street.com, No. 17-571 (2019).