The U.S. Supreme Court recently made an important copyright decision in the case Fourth Estate Public Benefit Corporation v. Wall-Street.com. In the decision, the Supreme court made a unanimous decision that a copyright registration from the U.S. Copyright Office is now required before filing a copyright infringement lawsuit.
There has been a long time circuit court split on the issue. While some circuit courts required only that a copyright application be filed prior to filing a copyright lawsuit, others required a registration. The process from the filing of a copyright application to the registration of the work can take several months and sometimes more than a year to complete. Therefore, this decision will have a large impact on victims of copyright infringement that need prompt action from the courts.
Although the registration process can be expedited, the process still may not be quick enough for works that are vulnerable to pre-distribution infringement such as movies and music. Given the new situation, the U.S. Copyright Office should expect a significant increase in the number of copyright applications they receive. The real issue lays in the unpredictability of copyright infringement since you rarely have a warning when someone is going to infringe your copyright.
The Court’s opinion is that existing copyright law “permits only one sensible reading: that the Copyright Office’s act of granting registration and not the copyright claimant’s request for registration determines whether “registration…has been made.”
The Fourth Estate Public Benefit Corporation v. Wall-Street.com case was not the only decision the U.S. Supreme Court made on Monday. For the first time in more than 100 years, the Supreme Court made two copyright related decisions in one day. The second decision being made in the Rimini Street, Inc. v. Oracle USA, Inc. case that “full costs” of the Copyright Act does not permit the appellate court to grant litigation costs past those identified by Congress.
Many businesses use a cease and desist letter to deter copyright infringement. The letter generally displays the ability to take the claim to court if needed. That may now appear to be an empty threat for any unregistered works. As such, moving forward original content creators will benefit from routinely filing copyright applications to obtain a registration to protect their assets and avoid the time and damage it would take to obtain copyright registration after an infringement has already been discovered.
Businesses that would benefit from routinely submitting a copyright application include industries that create video games, music, movies, television shows, photography, fashion, design, and everybody that owns a website or regularly publishes material online.