Registration Now Required Prior to Initiating Copyright Infringement Suit

April 9, 2019 | Nancy A. Del Pizzo | Intellectual Property

Courts at the opposite sides of the country (and some in between) have long differed on how easy it is for a party to file a lawsuit alleging copyright infringement. A March 4, 2019, decision by the United States Supreme Court has standardized the process throughout the nation.

In Fourth Estate Public Benefit Corp. v., LLC, the Supreme Court held that those bringing a copyright claim must have already obtained a copyright registration from the U.S. Copyright Office prior to bringing an infringement lawsuit. The decision gives defendants a strong case for dismissal throughout the country where a case has been filed before plaintiff obtains registration.

In 2010, the Ninth Circuit, in Cosmetic Ideas v. IAC/Interactive Corp., held that parties may initiate a copyright infringement lawsuit having only filed an application for copyright with the U.S. Copyright Office, even if they had not yet received a copyright certificate of registration. New York federal courts, however, have long required parties to obtain copyright registration, not just file an application, before being entitled to file an infringement lawsuit. The March 4 Supreme Court decision makes the law consistent throughout the United States, as the Court held that a copyright claimant cannot commence a copyright infringement lawsuit until the U.S. Copyright Office registers a copyright, “not when an application for registration is filed.”

The Supreme Court decision underscores the importance of timely filing a copyright application. The statute of limitations for copyright infringement runs within three years after the claim accrued. Some states have a tolling period based on when a party knew or should have known of the infringement. That is one reason why timing for registration has become a critical issue and/or defense. While three years may sound like a long time, if, by way of example, parties sit on their rights until they are in year three and file a copyright application then, registration is not likely to occur prior to the tolling of the limitations period. The current wait time from application to registration averages six months and can be as high as 10 months for online applications and up to 20 months for applications by mail, according to the U.S. Copyright website. A claimant can file an expedited application for a hefty special handling fee of $800, which will likely reduce that time to less than one month.

There are other reasons to timely file copyright applications, such as ensuring an ability to choose statutory damages and potential attorneys’ fees. This one, however, is critical to having a viable claim at all. It also means that the unknowing party who files a copyright infringement lawsuit without first obtaining registration affords defendants reliable dismissal motions throughout the U.S.

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