A U.S. Supreme Court decision interpreting what’s necessary to sue under the Copyright Act is both very interesting, and very important.
For years, the federal Courts of Appeal have been divided into two schools of thought regarding when a copyright holder has standing to sue for infringement:
- Those Circuit Courts (like the Second Circuit, presiding over New York) that say filing an application for a copyright is sufficient for bringing a copyright infringement lawsuit; and
- Those that say infringement lawsuits can only be filed after the copyright is registered.
In Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC, the Court reviewed the Eleventh Circuit’s “registration” interpretation of that issue. The plaintiff brought an infringement lawsuit upon filing an application for copyright, which had been dismissed by the lower court. The Eleventh Circuit affirmed the district court, and the Supreme Court affirmed the Eleventh Circuit.
The unanimous opinion was written by Justice Ruth Bader Ginsburg, who found that the only interpretation available — from looking at the statute — is that copyright registration is required before one can commence a lawsuit.
Justice Ginsburg went step-by-step through the statute and said if one reads the statutory language as only requiring an application in order to commence a lawsuit, it would make other language in that part of the Copyright Act superfluous; anything that renders statutory language superfluous cannot be correct. That’s one of the basic principles of interpreting a statute.
Justice Ginsburg went on to note that Congress had the opportunity to change this rule when it amended the Copyright Act in 1976. Congress wanted to protect certain works that are more vulnerable to being infringed upon before registration can take place. To remedy that, Congress allowed for pre-registration of certain works, where the dissemination happens soon after creation (such as news and music). An author whose work meets the standards for pre-registration can pre-register before the work is released — but because even pre-registered works have to be registered before bringing a lawsuit, that was another indicator that an application is not enough.
At the end of the opinion, Justice Ginsburg points out that the registration doctrine doesn’t prevent anyone from bringing actions for infringement that occurred before registration. Fourth Estate “raises the specter that a copyright owner may lose the ability to enforce” the owner’s rights within the three-year statute of limitations. In response, the Justice noted that it takes seven months on average to get registration — so there’s “ample time” to bring a lawsuit. Although the Court acknowledged that there seems to be a lack of resources and staffing at the Copyright Office, that’s something for Congress to alleviate, not for courts to cure.
Although I appreciate finally having a nationwide standard, the result is still problematic. As a practical matter, not everyone is immediately aware of when an infringement occurs. So, infringement may occur months before it is discovered. Even if infringement is discovered immediately, waiting seven months and THEN start looking back three years may very well minimize any damages.
Also, the whole concept of an immediate injunction is undermined with this ruling. Seven months also is a long time to wait for so-called “immediate” injunctive relief — during which time when you can’t shut down the infringer, the free availability of the work can dilute its value. With this ruling, anyone receiving a cease-and-desist letter can respond, “Hey, if you don’t have a registration in hand, you have no right to go after me until you get one. So, I’m going to continue to do this.” Even if they may be liable for all the infringing they do up to the date of registration, delay is not good for the copyright owner.
The only alternative is filing for expedited copyright registration. However, instead of costing $55 for each application, it costs at least $855. To be sure, that’s not a lot in view of the costs of litigation. But if you’re registering more than one work in order to sue for multiple infringements, that can be an expensive startup cost before bringing a lawsuit — or before even sending a cease-and-desist letter.
Also, the current 7-month lag for regular registration might slow down even more, now that an application alone is insufficient for bringing a lawsuit— because the Copyright Office may be flooded with expedited applications!
Clearly the moral of this is: Register early, and register often. The sooner you apply, the sooner you’re registered— or at least, the sooner you’ve started to wait “seven months” for registration. And with registration in hand you may have a less expensive route than litigation available to you: the old fashioned cease and desist letter. With this Supreme Court decision, only registration gives teeth to such a demand letter.
