Section 411(a) of the U.S. Copyright Act provides that an action for copyright infringement may be brought after “preregistration or registration of the copyright claim has been made in accordance with this title” or “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused.”  The courts are split as to whether a copyright claim may be brought once the copyright application, deposit, and fee is delivered to the Copyright Office or whether the plaintiff must wait until the Copyright Office responds to the application. The Fifth and Ninth Circuits have held the former, under the “application approach,” while the Tenth and Eleventh Circuits have held the latter, under the “registration approach.”  The First, Second, Third, Fourth, Seventh, and D.C. Circuits have all acknowledged the divide, but refused to decide one way.  The Supreme Court recently granted certiorari to an Eleventh Circuit case, Fourth Estate Public Benefit Corporation v. Wall-Street.com, to address this question.

Proponents of the application approach argue that the phrase “registration has been made” within § 411(a) refers to the actions of the copyright applicant, not the copyright office.  Since an applicant can bring an infringement case whether the Copyright Office grants or rejects the application, many see the registration approach as a mere formality.  Conversely, the Tenth and Eleventh Circuits have found that the language of § 411(a) unambiguously means that a copyright is registered when the Copyright Office has acted upon it.

How the Court rules will have important ramifications for future copyright infringement suits. Under the registration approach, bringing an infringement suit will be more difficult because applicants will have to wait for the Copyright Office to respond to their application, a process that could take nine months or more.  The long wait time will incentivize potential copyright holders to register more of their works—and faster—to ensure that they hold a copyright in the event an infringement does occur.  Additionally, potential holders might feel the need to register their works immediately through the Copyright Office’s five-day expedited process, which costs $800, and could get prohibitively expensive when registering multiple works. Proponents of the application approach worry that if the registration approach prevails, the relatively short three year statute of limitations will expire before the Copyright Office responds to an application and the applicant may lose its chance at a remedy altogether.

On the other hand, the application approach may open courts up to unmeritorious cases and discourage potential holders from applying for a copyright until an infringement arises.  Applicants should be aware, however, that having a copyright for a work before filing an infringement case has some important advantages.  First, if the holder has had the copyright for five years before the case, the holder can show prima facie evidence of copyright.  Second, if the holder has had the copyright for three months before the infringement began, an award of statutory damages and attorney’s fees becomes available.

In any event, this Supreme Court case is one in a series of recent copyright cases that will likely have a significant impact on copyright protection and litigation going forward.