On March 4, 2019, the U.S. Supreme Court settled a split between federal appeals courts in Fourth Estate Public Benefit Corp. v. Wall-Street.Com, LLC, regarding when a copyright owner may sue for copyright infringement in court. The Court unanimously held that an infringement lawsuit based on alleged copyright in a work is prohibited until the work is federally registered with the U.S. Copyright Office, rather than when the author submits the application to the Copyright Office. (See opinion of the Court.)In the U.S., federal law, 17 U.S.C. § 411(a), 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.” The dispute in this case centered on the meaning of “registration . . . has been made.” Interpreting this language, some courts previously allowed copyright owners to sue for copyright infringement as soon as an application for copyright was filed with the Copyright Office, while others permitted the lawsuits only after the Copyright Office reviewed and registered the copyright.
Justice Ruth Bader Ginsburg, writing for the Court, held that the “registration approach,” instead of the “application approach,” “reflects the only satisfactory reading of §411(a)’s text.” The Court discussed the plain language and legislative intent of the statute. The Court acknowledged the delays in Copyright Office’s registration processing time, and suspected it was likely not what Congress envisioned when it set up the relevant statutory scheme. Nevertheless, the Court maintained the unfortunate administrative lag “does not allow [it] to revise §411(a)’s congressionally composed text.” Instead, the Court suggested that Congress could authorize more staff for the Copyright Office, to help with the applications backlog.
The Court also clarified that even though copyright infringement claims cannot be brought in federal court prior to registration, upon registration a copyright owner may recover for infringement occurred both before and after registration. Additionally, even under the unanimous rule announced by the Court, there are limited circumstances where a copyright owner is allowed to sue for infringement before registration. One of these limited situations is where the copyright owner obtains a preregistration for its work of “a type vulnerable to predistribution infringement,” such as a movie or musical composition. Another exception involves live broadcasts. However, even though a copyright owner may sue for infringement of a live broadcast before the broadcast is registered, the copyright owner faces dismissal of her suit if she fails to register the broadcast within 3 months of its first transmission. The Court emphasized “[e]ven in these exceptional scenarios,  the copyright owner must eventually pursue registration in order to maintain a suit for infringement.”
The Court’s opinion brings more clarity to future copyright owners and courts involved in copyright infringement lawsuits, and further highlights the importance of obtaining registration with the Copyright Office in an expeditious fashion. However, the retroactivity of this holding is unclear. Copyright owners who currently have an application and a lawsuit pending should consider strategies in the face of dismissal motions or decisions.