By Matthew J. Booth
A couple of weeks ago I wrote about the timing of filing a copyright infringement lawsuit. The U.S. Supreme Court answered this question in Fourth Estate Public Benefit Corp. v. Wall-Street.com with a short, unanimous opinion by Justice Ginsburg. The answer is you need to have received a copyright registration before you can file the lawsuit. See Fourth Estate Public Benefit Corp. v. Wall-Street.com, No. 17-571 (US 2019). Link to opinion.
The Court went with the “registration approach” that I discussed in my earlier blog. This approach follows the plain language reading of the first part of section 411(a) (“…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”). See 17 USC 411(a). In reaching its decision, the Court said that the registration approach reflects the only satisfactory reading of the text of 17 USC 411(a).
Now that the Supreme Court has resolved the split between the Federal Courts of Appeal, it’s time to rethink copyright protection. The first step in any future strategy starts with the adage “file early, file often.” In industries such as media, music, and video games, one option is to use preregistration to put a marker down before filing the actual copyright application. I think that a “pre-registration” filing is the functional equivalent to the “application approach,” I discussed in my previous blog but it does have a basis in the statutory language. Another option is to use the expedited registration process at the Copyright Office which has a higher fee than a normal application ($800 per work versus $55 per work for normal processing) and which will result in a copyright registration within about one week. I suspect that because of this case, the Copyright Office will have an uptick in expedited registration requests and that the processing time will increase exponentially.
Copyright cases have a 3-year statute of limitations within which to file the lawsuit after the infringement occurs. See 17 USC § 507(b). If you feel that you can hold off filing the lawsuit while you wait the 8 to 9 months it is currently taking to receive the registration, then you can follow the normal “non-expedited” processing path.
Consulting with copyright counsel can help determine what filing strategy is best.