Businesses bemoan the fact that their attorneys can never make a concrete legal determination because the applicable law requires a balancing of a myriad of factors – many of which cannot be known until expensive litigation discovery is undertaken. On March 4, 2019, the Supreme Court issued a ruling that businesses can embrace for its easy certainty and application. The ruling applies to filing suits for infringement of copyrights and according to the Court: no copyright registration, no suit.
Previously, there had been a split among federal appellate courts over whether having an application to register a copyright on file was enough to institute suit. Several courts had ruled that, though the copyright statute seemingly required an actual registration as a prerequisite for filing suit, having an application to register on file was sufficient to institute suit. This interpretation worked well for copyright holders wanting to file suit, but whose applications were log-jammed for months in the Copyright Office. In the opinion handed down in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court announced that, log-jams be damned, registration occurs, and a copyright claimant may commence an infringement suit, only when the Copyright Office registers a copyright. (The only exceptions to this rule are expressly set forth in the copyright statute and are limited to movies or musical compositions being prepared for distribution and to live broadcasts.)
Non-limiting examples of works that can be copyrighted include drawings, paintings, photographs, essays, poems, stories, software and websites. Authors, artists and creative people should make sure to get applications for copyright registrations for their works on file as soon as possible. In addition, to it now being clear that an issued registration is a prerequisite for filing suit, having a registration sooner rather than later improves the chance the copyright holder can ask for statutory damages (as opposed to having to prove damages) in the event of infringement.