The United States Supreme Court has ruled that copyright owners must register their works prior to filing suit against infringers. In Fourth Estate Public Benefit Corporation v., LLC, 586 U.S. ____ (2019), the Court held that registration is a statutory prerequisite to a copyright infringement lawsuit. Faced with a circuit split over whether filing a copyright application would suffice over full registration by the U.S. Copyright Office, the Court relied on the plain language of the Copyright Act to reach its decision.

The Copyright Act states that “no 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.” 17 U.S.C. § 411(a). Interpreting this language according to its plain meaning, the Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” Fourth Estate Public Benefit Corp., 586 U.S. ____, at 1. Under the Copyright Act, a work’s author obtains “exclusive rights” under copyright law when an original work of authorship is fixed in a tangible medium of expression. But, per the Supreme Court’s decision, a work’s owner still must exhaust the administrative requirement of obtaining a certificate of registration (or refusal to register) from the Copyright Office before filing suit for copyright infringement. Id. at 3.

The Court summarized its decision by concluding that “‘registration . . . has been made’ within the meaning of 17 U.S.C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.” Id. at 12. The Court’s decision does not mean, however, that post-infringement registration cuts off a copyright owner’s right to sue. Rather, upon registration of a copyright by the Copyright Office, a copyright owner can sue for both pre-registration and post-registration infringement. Id. at 1.

Still, copyright owners should note that registration with the Copyright Office after applicable dates may forfeit certain available remedies in a copyright infringement lawsuit, including the ability to recover statutory damages and attorneys’ fees. Therefore, early filing can provide important advantages against copyright infringers.

The Beggs & Lane Intellectual Property Group assists clients with a variety of copyright law issues, including litigation, enforcement, registration, licensing, and Digital Millennium Copyright Act (DMCA) safe harbor protections against copyright infringement liability.