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Supreme Court Rules That Registration Certificate Must Precede Infringement Lawsuit

Case Closely Watched by Artist Advocates

The Supreme Court issued a ruling in Fourth Estate Public Benefit Corporation v., LLC. The ruling holds that copyright registration only occurs after the Copyright Office approves the registration. Only then can the copyright holder bring an infringement lawsuit. The decision overturns the rule followed in many jurisdictions which held that a copyright owner could sue for infringement once they completed the registration application process.

The Supreme Court decision arose from a dispute between Fourth Estate, an online news provider, and, who licensed Fourth Estate’s articles. When refused to remove Fourth Estate’s articles once the license expired, Fourth Estate sued for copyright infringement. moved to dismiss the lawsuit since the Copyright Office had not yet completed its review of the copyright registration application for the articles. The court granted’s motion to dismiss, and the decision was upheld on appeal. Fourth Estate then petitioned the Supreme Court to hear the case.

Lengthy Processing Times for Copyright Registration Pose Problems

Creators and copyright holders were concerned with the outcome of the case due to the current backlog of copyright registration processing – on average up to six months for online registrations and 13 months for mailed applications (according to the Copyright’s Office posted registration processing times).

The Guild joined an amicus brief filed by the Authors Guild, which pointed out that the rampant, immediate infringement of copyrighted works continues to balloon even as registration processing times increase. The Supreme Court decision addressed the lengthy processing times, stating that Congressional action is required alleviate the staffing and budgetary shortages. However, the unanimous decision delivered by Justice Ginsburg concludes that registration is made “within the meaning of 17 U. S. C. §411(a)… when the Register has registered a copyright after examining a properly filed application.”

Artists are Encouraged to Register Early

In light of the decision, we urge creators to proactively register their works early (see the blog article by attorney Linda Joy Kattwinkel of Owen, Wickersham & Erickson). In what ASMP legal counsel Thomas Madden characterizes as a bit of silver lining, the decision has caught the attention of Congress. Senators Thom Tillis (R – North Carolina) and Christopher Coons (D – Delaware) sent a letter to Acting Registrar of Copyrights Karen Temple asking what steps the Office is taking to reduce the processing times.