Circuit Split Alert: U.S. Supreme Court To Decide Key Copyright Lawsuit Precondition

Author:Mr Michael Nepple
Profession:Thompson Coburn LLP

Do copyright owners need an issued copyright registration or only a pending application to enforce their copyright in federal court? The U.S. Supreme Court has agreed to decide this question.

The Copyright Act provides 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 ...."  The circuit courts of appeal that have considered this question reached different conclusions - all turning on the interpretation of the phrase "registration has been made."

Seven appellate courts have considered the question, and the results are split. Two appellate courts determined the phrase means an issued copyright registration, but two other appellate courts found that a registration has been made when the copyright owner submits their application. Two courts acknowledged the different approaches, but elected not to decide the question. And one appellate court, the Seventh Circuit Court of Appeals, issued two opinions - with one opinion supporting each view.

Before accepting the appeal in Fourth Estate Public Benefit Corp. v., the U.S. Supreme Court asked the U.S. government for its view. The government asserted the owner must have an issued registration from the Copyright Office in order to...

To continue reading