Supreme Court Determines Copyright Applications Must Proceed to Registration Before an Infringement Action May be Filed

Takeaway: The Supreme Court has determined that a copyright application must proceed to registration before it can be asserted in a copyright infringement suit. Thus, file your copyright application early as it can take many months to issue before you can sue an infringer!

In the recent case of Fourth Estate Public Benefit Corp v., the Supreme Court of the United States determined the question of whether you may officially bring suit for copyright infringement before a copyright application has matured into registration. In Fourth Estate, Fourth Estate licensed articles that they had written to Subsequently, canceled the license agreement that they had with Fourth Estate. However, never removed the articles that they had licensed from Fourth Estate from its website.

Before filing suit, Fourth Estate filed copyrights over the articles that were at issue in this case. However, the Copyright Office had not yet acted on the copyright applications.

Fourth Estate argued that the copyright statute states that you may bring an infringement suit once “registration . . . has been made.” They argued that this phrase merely refers to the act of filing for registration with the Copyright Office. The Supreme Court disagreed with this interpretation holding that filing a copyright application alone is not sufficient to bring a lawsuit for copyright infringement.

The court reasoned that the phrase “registration . . . has been made” refers to the Copyright Office’s act of granting registration, not the copyright claimant’s request for registration. Therefore, although you own copyright in a creative work the instant you produce that work, you cannot enforce those rights until you have met the formal requirements and your application has proceeded to registration.

For this reason, as a business owner you should be diligent in filing copyright applications for your creative works. Otherwise, you may end up having to delay any legal action until the applications have actually proceeded to registration.