Supreme Court Requires Copyright Registration Before Litigation

Sometimes, Supreme Court opinions make headlines. This is not one of those times. In a decision issued on March 4, 2019, the Supreme Court resolved an ongoing unresolved question that comes up often in copyright litigation – in order to file suit for copyright infringement, does a copyright owner merely need to apply for copyright registration, or does a copyright owner need to actually obtain a registration?

In the Court’s unanimous decision, Justice Ginsberg looked to the text of the Copyright Act of 1976, finding that Congress intended to require registration. Thus, the Court upheld the long standing practice of the United States Court of Appeals for the Eleventh Circuit (hearing appeals from federal district courts in Florida, Alabama, and Georgia) and other circuits following the same rule, and effectively overruled the long standing practice of the United States Court of Appeals for the Fifth Circuit (hearing appeals from federal district courts in Louisiana, Texas, and Mississippi).

Practically, this decision means a lot to the parties involved. However, going forward, the practice could have little substantive effect. While it is true that the United States Copyright Office takes many months (see Current Processing Times) to process copyright applications, where litigation is anticipated, copyright applicants can request special handling from the copyright office, effectively allowing for expedited copyright prosecution. Additionally, preregistration is available for certain types of unpublished works being prepared for commercial distribution.

Even though copyright owners who have not yet obtained a registration certificate can fairly quickly have their copyright applications examined through special handling, this decision just highlights what many copyright lawyers have counseled their clients for years – apply for copyright registration early! Even if copyright prosecution can be expedited through special handling, the date of filing is critically important for determining whether statutory damages and attorney’s fees are available remedies. A very late filing date can also result in a loss of the presumption of validity of the copyright and of the facts stated in the registration certificate. See 17 USC 410(b). In other words, register that work!