The much-anticipated ruling for Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al. has arrived. Yesterday, Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court, confirming that a work must be registered prior to commencing a copyright infringement lawsuit.
Held: Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.
This ruling confirms the literal reading of 17 U.S.C. §411(a), which states 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.”
Fourth Estate, a news organization, had argued that, because “registration is not a condition of copyright protection” under 17 U.S.C. §408(a), then §411(a) should not bar a copyright claimant from enforcing that protection in court once they have applied for registration.
Now it is clear that registration must be obtained before commencing a lawsuit. This means that copyright owners must be even more diligent about filing applications for their significant works. The time spent waiting on an application to register would normally remove any option of quick, decisive action by a copyright owner against an infringer.
The best option for late applicants will be the Copyright Office’s Special Handling procedure, which allows for registration in less than a week for an additional $800 Special Handling fee.
Justice Ginsburg’s opinion acknowledged the current administrative delay of the Copyright Office, acknowledging that Congress is in the best position to protect copyright claimants, either by increasing funding to the Copyright Office or revising the language of §411(a).
True, registration processing times have increased from one to two weeks in 1956 to many months today. Delays, in large part, are the result of Copyright Office staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow this court to revise §411(a)’s congressionally composed text.
This blog will begin to monitor the real-world impact of this decision and report back periodically.