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Copyright Registration Now Required to Recover Infringement Damages

Published on April 3, 2019

The Copyright Act of 1976 requires registration before a party can institute a civil action for infringement of copyrightable material. However, since its inception, courts have differed in their interpretation and application of this registration requirement. Specifically, courts in the past have allowed suits for infringement to proceed when a party has an application for registration pending, but which has not yet been approved.

On March 4, 2019 the U.S. Supreme Court finally settled the question in its 9-0 ruling in Fourth Estate Public Benefic Corp. v., LLC, et al. In Fourth Estate, the plaintiff filed an infringement action alleging that failed to remove the plaintiff’s news article after the parties’ license agreement was cancelled. Fourth Estate had applied for a U.S. copyright, but the registration was pending at the time of the action.

In its decision, the Supreme Court held that an infringement action requires a finalized registration in order for a party to recover. When a party has a registered copyright, the courts can award damages retroactively for infringement that occurred prior to the registration. The Court explained:

…a copyright claimant may commence an infringement suit when the Copyright office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.

In addition to its ruling, the Court outlined some limited circumstances where certain copyrightable works such as movies, live broadcasts, or musical compositions may need to have injunctive relief before registration. Additionally, in special circumstances, a party can seek pre-publication registration.

Copyright processing times have slowed in recent years due to staffing and budgetary shortages. While the Court recognized this problem, it declined to attempt to address the issue in its holding, explaining that it is an issue to be alleviated by Congress, not the courts.

Timely registration of a copyright will ensure statutory damages, and even recovery of attorneys’ fees if the registration is secured prior to the infringement. If you have copyrightable materials, we recommend registering your materials in a timely manner in order to secure these and other benefits.

Kevin Collette can be reached at [email protected].

Madison Burke can be reached at [email protected].

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