When it comes to protecting creative works, copyright law in theory offers the most instant form of protection. Under the Copyright Act of 1976, a copyright author gains exclusive rights in the work immediately upon its creation. 17 U.S.C. § 106. Notwithstanding, the author may not institute a civil suit for infringement of those exclusive rights until the registration requirements under Section 411(a) have been fulfilled. Specifically, § 411(a) provides 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.”
Despite the plain reading of the statute, United States Appellate Courts have delivered split interpretations of what constitutes “registration” under § 411(a). Compare Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir. 2010) (holding that registration requirements are satisfied upon submission of a complete registration application to the Copyright Office); Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (2d Cir. 1958) (holding that a copyright owner could not immediately sue upon the Copyright’s Office refusal to register, but must first obtain a registration certificate).
On March 4, 2019, the U.S. Supreme Court settled the circuit split. The Supreme Court held that copyright registration is required before a claimant can commence an infringement suit—and registration does not occur until the Copyright Office issues the registration. Upon registration, however, the copyright owner may recover for infringement that occurred before and after registration. In limited circumstances, copyright owners may file an infringement complaint by obtaining a preregistration from the Copyright Office if the work is found to be susceptible to predistribution infringement (e.g., a movie or a musical composition), but must register the work immediately after the publication or infringement. A copyright owner may also bring suit for infringement of a live broadcast before registration has been made, but must register the work within three months of its first transmission. Consequently, even the statutory exceptions require the owner to register the copyrighted work in order to proceed with an infringement suit.
The Supreme Court reasoned that Congress’ resistance to eliminating the registration requirement, combined with the above statutory exceptions and litigation procedure to cover instances where the claimant is refused registration required interpreting § 411(a) to mean that registration occurs when the Register has issued a registration upon examination of a properly submitted application by the claimant.
While the Supreme Court’s holding establishes much-needed clarification to the interpretation of § 411(a), it also creates a greater incentive for creatives and owners of copyrighted works to obtain registration and furthers the tension with the Berne Convention, an international treaty governing copyright that explicitly prohibits conditioning copyright protection on registration. (The United States became a party to the Berne Convention in 1989.) Increased registration applications may in turn further delay administrative processing in the Copyright Office, which now has an average processing time of seven months. Nonetheless, the Court explained that copyright registrants should not fear the Copyright Act’s three-year statute of limitation for enforcement of their exclusive rights given that the current processing time allows ample time to sue for infringement that occurs both before and after the Register’s decision. In any instance, it would be best for the copyright author or owner to consult with copyright counsel to evaluate whether to file a copyright application upon creation of a copyrighted work.