In a decision issued March 4, 2019, the U.S. Supreme Court has ruled that a party must obtain a copyright registration – rather than merely place an application on file with the U.S. Copyright Office – in order to sue for copyright infringement. This ruling affects companies seeking to protect creative material put into any form, such as video, audio, print, or digital. The Supreme Court resolved a split among federal circuit courts regarding when a copyright lawsuit may be filed in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, et al., which can be found here.

Copyright law protects original works of authorship in a “tangible medium of expression” in literary, musical, dramatic, pictorial, graphic, and other categories of works. Works of authorship are infringed when the work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

The Copyright Act states that plaintiffs may not bring an infringement lawsuit until “registration of the copyright claim has been made.” The Fourth Estate decision, which affirmed a ruling from the Eleventh Circuit, interpreted that statutory language to mean that copyright claimants who wish to enforce their exclusive rights in such works may not file suit until a registration is obtained from the Copyright Office.

This ruling resolves the law in the Eighth Circuit (which governs Nebraska federal law) and other federal circuit courts. Some courts had previously ruled that the act of submitting paperwork to the Copyright Office to apply for a copyright registration was a sufficient prerequisite for a claimant to bring an action against a suspected infringer. Instead, the Court ruled that the date on which the Copyright Office registers a copyright marks the time at which a lawsuit can properly be commenced. It was unclear from the ruling how courts will treat currently filed lawsuits in which no proof of copyright registration has been provided; courts could opt to dismiss such suits without prejudice or stay the cases until registration is obtained.

Practical Implications of the Ruling for Copyright Owners

If you suspect someone may be infringing your copyright, but do not yet have a copyright registration, your time to file suit is now compressed. Important information on the timing to obtain copyright registration before filing suit is as follows:

• The statute of limitations to file suit for copyright infringement is three years from the time the claim accrued. It is essential to contact an attorney when infringement is first discovered, because some courts may not recognize continuing infringement or infringement that was not discovered until a later time
• The Copyright Office takes an average time of seven months to process an application for copyright registration, and this time could increase based on a rise in applications after the Fourth Estate decision
• An expedited “special handling” process of five business days is available in limited circumstances for an $800.00 fee, but the Copyright Office makes no guarantee it will complete the application review in that timeframe

If you have questions about copyright law, would like assistance in registering a copyright, or believe someone is infringing upon your copyrighted materials, please contact one of the specialists in Koley Jessen’s Intellectual Property Practice Area.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}