On March 4, 2019, the Supreme Court unanimously ruled that copyright owners must first obtain a copyright registration from the U.S. Copyright Office, or receive a denial of a registration, before they can bring a copyright infringement lawsuit. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No.17-571 (Mar. 4, 2019). The ruling, authored by Justice Ginsburg, resolved a split of authority among different circuit courts in which some courts did not require a registration prior to filing suit, only the filing of a copyright application.
Justice Ginsberg explained that a copyright owner’s potential lost time in waiting for the registration was “overstated” since the average processing time for copyright applications is now about seven months, leaving ample time to sue after an issuance or denial of the registration.
While copyright protection begins when a work is first “fixed in any tangible medium of expression,” 17 U.S.C. § 102(a), we strongly encourage our clients to file copyright applications as soon as possible for important works of authorship, such as software programs and artistic designs. Copyright registration can also provide other advantages including statutory damages, attorney’s fees, proof of ownership, and protections if recorded with U.S. Customs.