Reasons to Register Your Copyright!

On 3/4/19, the hashtag#SupremeCourt resolved a circuit dispute on when a hashtag#copyright infringement suit can be instituted. In Fourth Estate Public Benefit Corp. v. Wall-Street.com, the court held that the copyright statute, 17 USC 411(a), controls when a copyright claimant can file an infringement suit. The applicable portion of the statute reads: "[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." The underlined portion is where appellate circuits have disagreed. While most circuit courts have required registration of a copyright prior to filing a complaint for copyright infringement, some courts determined that filing an application was sufficient.

The Supreme Court's opinion resolves the appellate court differences in holding that copyright registration "has been made" when registration is issued - not when an application for copyright registration is filed. An infringement action may also be initiated if the U.S. Copyright office issues a denial of registration. The applicable portion of 17 USC 411, states in part: "In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights."

What does this mean for you?

Copyright exists upon creation. Regardless, if another person creates a work that is substantially similar to your work and you have not registered your work, your rights to damages are severely limited.

1. Without registration, you cannot file an action for infringement.
2. Without registration either 3 months after first publication or 1 month after learning of infringement, you cannot request statutory damages or attorney's fees for an unpublished work (before the effective date of registration) or for infringement commenced after first publication adn before the effective date of registration.