Answer: Only if you care about protecting your creative work.

We realize we set you up with a leading question, but the reality is, based on a recent Supreme Court ruling, it is more important than ever before to file for a copyright registration if you want to protect your creative work.

On March 4, 2019, the Supreme Court settled a split among U.S. Courts of Appeals regarding whether a copyright owner can sue for infringement before the Copyright Office grants registration in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC.

This decision underscores the importance for copyright owners who expect to enforce their rights through litigation take early action to register their works with the Copyright Office before any claim arises.

The Copyright Act of 1976 gives copyright protection to “original works of authorship fixed in any tangible medium of expression,” and copyrights vest as soon as the original work was created and reduces to a tangible medium (such as put in writing, saved on a hard drive, recorded on tape, etc.).

Copyright owners have the exclusive right to (a) reproduce their original work; (b) distribute such work; (c) publicly display or perform the original work, and (d) create derivative works of the original work. And they can prevent other people from exercising those rights during the duration of the copyright.

However, 17 U.S.C. §411(a) conditions 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.” In plain English, this means that if the original work has not yet been copyrighted, the owner cannot sue for copyright infringement.

Fourth Estate Public Benefit Corporation (“Fourth Estate”), a news organization, sued Wall-Street.com and its owner (“Wall-Street”) for copyright infringement after Wall-Street failed to remove Fourth Estate’s news articles from its website despite having canceled the parties’ license agreement. Fourth Estate had filed applications to register the articles with the U.S. Copyright Office. Yet, the Register of Copyrights had not acted on those applications before Fourth Estate filed the suit.

The parties disputed the meaning of “registration” in §411(a). Fourth Estate argued but failed to convince both the U.S. District Court and the Eleventh Circuit court, that “registration” for the purposes of §411(a) occurs when a copyright owner submits the application, materials, and payment to the Copyright Office. Both lower courts held that registration of copyright hasn’t been made until the Copyright Office acts. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court that affirmed the lower courts’ decisions, holding that “registration” in §411(a) “refers to the Copyright Office’s act of granting registration, not to the copyright claimant’s request for registration.”

However, the statute provides several exceptions to the general rule that registration occurs, and a copyright claimant may commence an infringement suit when the Copyright Office registers the copyright. For example, owners of material susceptible to pre-distribution infringement, such as movies or musical compositions, can apply for preregistration, a limited review of the application after which the copyright owner may commence an infringement suit.

Thus, this case clarifies that generally a copyright owner only may bring an infringement suit after the Copyright Office grants registration. If authors and content creators do not register their works early, they may not be able to enforce their rights in courts right away when infringement takes place.

By Judy Yen, Loyola Law Student and Law Clerk with Carbon Law Group