Fans of Ruth Bader Ginsburg rejoiced at her return to the Supreme Court a few weeks ago. Copyright holders were, perhaps, less excited when they read Ginsburg’s decision in Fourth Estate Public Benefit Corp. v. Wall-Street.Com. Although the decision merely clarifies a procedural point relating to infringement litigation, makers who vigorously protect their IP rights are concerned about the delay the Court’s decision will add to the already time-consuming process of copyright litigation.
Copyright automatically attaches to a work at the time it’s created. There is, however, a process for officially registering your copyright work with the U.S. Copyright Office.
If copyright automatically attaches at the time a work is created, then why bother to register your copyright? One important answer: because you can’t file a lawsuit in federal court to protect your copyrighted work if you haven’t registered it first. Registration also affects the type and amount of damages that you can collect if you are successful.
Many copyright holders don’t routinely register every single one of their works. They may not have any problems with infringement; they may be trying to save money and time; they may create so many copyrighted works that registering them all is impractical. If they later decide to sue an alleged infringer, they register the work prior to filing their lawsuit. Some copyright holders do routinely register their works, but given the speed of the internet, find that their work is being infringed before copyright registration is complete. And that’s where the Fourth Estate decision enters the picture.
The new decision
Some courts held that a plaintiff only had to submit the registration application in order to file suit. Other courts held that the plaintiff must wait to receive their completed certificate of registration from the Copyright Office (or a notification of rejection) before filing suit. Given that it takes months for the Copyright Office to turn around an application, that can be very significant for a plaintiff.
The Fourth Estate decision held that registration must be complete before suit can be filed and that merely submitting the registration application isn’t enough. The decision isn’t very controversial as a matter of statutory interpretation: the relevant part of the statute provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). Note the language “has been made” instead of “has been applied for” or “was submitted.” A subsequent part of the statute tells a claimant what to do if an application for copyright protection is rejected. As Justice Ginsburg observed, why include that provision if simply submitting a registration application is all that’s required?
The effects of this decision on creative small businesses
What caused some consternation among copyright holders, however, is the effect the decision has on copyright infringement litigation. Justice Ginsburg estimated that it takes approximately seven months after submission for a registration application to be approved or rejected by the Copyright Office. That means if you haven’t already registered your work and you believe it’s being infringed, you must submit the registration form and wait seven months (or however long the process currently takes) until your registration is completed or rejected. Only then can you file suit. During those seven months or so, the alleged infringer is free to continue to exploit your copyrighted work. Should the backlog at the Copyright Office get worse, it may take even longer for a copyright holder to get their day in court. Note that you can ask for expedited processing from the Copyright Office, but it will cost substantially more (including an $800 special processing fee).
In an ideal world, makers should always register their works with the Copyright Office to get maximum protection from infringement – and maximum damages. In the real world, registering all your creations may be too expensive or burdensome, especially for small makers or those who generate a lot of content. In that case, you’ll have to balance the costs of registration with the likelihood that you’ll need registration down the line to protect your works and collect maximum damages should someone infringe them. A good intellectual property lawyer can help you determine what makes sense for your situation, given the complexity of copyright law.
This article is intended for informational use only and does not constitute legal advice or create an attorney-client relationship. Consult a licensed attorney in your state to determine how the law applies to your unique situation. This article reflects my own personal views and not those of my employer.
 Available via the Supreme Court’s website at https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf).
Carol is a former attorney who left the practice of law when her oldest child was born. She learned to knit as a child, and returned to the craft as an adult. Today she juggles several roles in the knitting industry as designer, writer, handdyer and teacher. Carol lives outside Philadelphia with her husband, their three children and a pet bunny rabbit, Charcoal.