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US Supreme Court: When can copyright owners sue for infringement?

On the U.S. Supreme Court’s current docket is a major copyright case called Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which will decide at what point in the federal copyright registration process the copyright owner can file a lawsuit in federal court for infringement of the copyright. 

At Hovey Williams LLP in Kansas City, we advocate for copyright owners in copyright infringement suits as well as those accused of copyright infringement.

What does copyright protect? 

Copyright is an intellectual property right automatically granted to those who make tangible, creative works like art, writing, music, film, television, architecture, software development, photographers and more. Specifically, copyright protects the owner’s rights to reproduce, perform, license, create derivative works, sell, lease, display and so on. 

If a party who does not own a copyrighted creative work engages in any of these actions without the permission of the owner, the party infringes on the copyright. 

What is registration? 

To bring a federal copyright infringement lawsuit, the owner must have registered the copyright with the U.S. Copyright Office. Registration begins with an application, deposit and fee, followed by an examination of the copyright by a government examiner to decide whether the creative work qualifies for registration. The entire process takes on average about eight months, according to the United States amicus brief in the Fourth Estate case. 

The U.S. Courts of Appeals are split on the issue of when “registration” happens for purposes of eligibility for filing an infringement suit. The answer to the question can be lucrative, since the plaintiff may receive statutory or actual financial damages, an injunction ordering that the infringer cease the action, and possibly attorney’s fees. 

On one side is the registration approach, which holds that the copyright examiner must have finished the examination and either registered the work or denied the application before the copyright owner has the right to file an infringement suit. Supporters of this approach look more at the text and language of the law and its likely meaning. 

On the other side is the application approach, which interprets the law as allowing an infringement action so long as the owner has filed the application for registration and paid the deposit and fees, even if the examiner has not yet reached a decision on registration. Proponents of this view argue that the owner has no control over how long the examination takes and has done everything possible toward resolution, so it is fair to allow the infringement suit. 

The courts in the various circuits are split between these two approaches, so the U.S. Supreme Court will resolve the issue in Fourth Estate. At our firm, we will watch the case closely and report back on its resolution.

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