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The Clock is Ticking! The Supreme Court Reaffirms Importance of Early Copyright Registration

By Helena Guye, University of Missouri School of Law

While perhaps not its most controversial recent decision, the United States Supreme Court recently issued a ruling that will have a notable impact on prospective copyright holders. The unanimous ruling inFourth Estate Public Benefit Corporation v., published in March 2019, ultimately holds that before an individual or entity can bring a lawsuit for copyright infringement, the U.S. Copyright Office must have issued its decision regarding the registration of the underlying work in question.

Under the Copyright Clause of the U.S. Constitution, “authors” establish rights regarding their creations immediatelyupon their creation. This means that the copyright holder has exclusive rights to, among other things, reproduction, distribution, display and performance to a work without having registered the copyright. (To learn more about those rights, click here.)

Despite this fact, a copyright holder cannot bring an action for infringement upon these rights without having registered the copyright with the Copyright Office. The Copyright Act includes the relevant language: “[N]o 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.”

Until now,lowercourts have split on what this language actually means. It certainly is not crystal clear at first glance—does “making registration” mean when the individual applies for copyright protection or when the Copyright Office issues its registration decision? That was the ultimate question the Supreme Court confronted in Fourth Estate.
“Registration” could be read as having occurred when the copyright holder appliedfor protection through the Copyright Office—including submission of the application, materials, and payment of a fee. The Court referred to this as the “application approach.”

Alternatively, “registration” could be considered as having happened when the Copyright Office actually issued its decision—aptly called the “registration approach.” The Supreme Court resolved this conflict in Fourth Estateby adopting the latter understanding that registration occurs when the Copyright Office issues its decision approving the application for copyright protection.For a verybrief rationale of the Court’s determination, essentially to have held that registration occurs upon the applicationwould have put the relevant portion of the statute—the sentence quoted above—in conflict with other portions of the law. (If you would like to read more about how the Court came to this conclusion, I would recommend reading the actual opinion here.

Of course, for those who foresee the possibility that their work could be infringed, there is one very important take-away from this decision: apply for registration as early as possible!The average time it takes for the Copyright Office to process and issue a decision regarding registration is seven months, but it can take up to over a year. If one must wait this long before being able to bring an infringement suit, this can have substantial negative impact on the copyright holder in multiple ways, especially since any delay in the dispute resolution process can be a drain on resources.

The Supreme Court’s holding also adds to a few other incentives for prompt registration. Importantly, the timing of registration impacts on the amount a plaintiff may be awarded as far as statutory damages are concerned. Statutory damages are established by law—amounts that will be awarded in an infringement suit without proof of “injury” that can be increased or decreased depending on whether the infringement was “willful” or “innocent.” This is opposed to actual damages that must be proven, which are amounts such as the profit lost as a result of the infringement. Statutory damages usually range from $750 to 30,000 per work but can increase to up to $150,000 per work and can also include attorney’s fees. Importantly, these remedies are not availableif the work is not registered before the infringement begins, or within three months of publication.

The Supreme Court’s opinion did consider the possible scenario of an immediate need for copyright registration in order to protect one’s intellectual property. For such situations, there are a couple options. First, if one thinks a work may be infringed before the work is distributed, one could “preregister” the work. By going through the preregistration process, the author can maintain the right to statutory damages as well as attorney’s fees. One should note, however, that this does not do away with the registration requirement—the work must be fully registered at a later time. (If you would like to learn more about preregistration, click here.)

A second avenue by which a person could seek a speedier registration decision would be “expedited” processing. This special handling process was designed and established specifically for the possibility of pending or prospective litigation. For $800 more than the standard $35 fee for a simple on-line application, one can expect a registration decision from with Copyright Office within as little as five working days. While this may seem like a lot of money up front, it may very well be worth it in the long run.
Ultimately, while theFourth Estatedecision resolving a split among the lower courts was not especially ground shaking, it is important for authors to keep in mind the importance of prompt and regular registration of their works in order to better protect their intellectual property rights.