Artists across the United States that wanted to sue to protect their mental expressions (copyrights) have had to figure out if a copyright registration was required to file a lawsuit, or if simply applying forregistration was enough. In the Eleventh Circuit, which includes Florida, a plaintiff is required to secure a copyright registration from the U.S. Copyright Office before filing a copyright lawsuit.
On March 4, 2019, in a long-awaited decision, Justice Ginsberg delivered the unanimous opinion of the Supreme Court of the United States (SCOTUS) in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, et al, No. 17-571, 586 U.S. ____ (March 4, 2019). The question before the Court was whether registration is secured under Title 17 of the Copyright code by simply filing the application, depositing the copies of the work, and required fee, or if registration occurs once the Copyright Office reviews and registers the copyright. SCOTUS agreed with the Eleventh Circuit and affirmed that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” SCOTUS also held that a copyright owner can recover damages for infringement that occurred both before and after registration.
The Fourth Estate decision notes the increased time by the Copyright Office in progressing copyright applications. Registration processing times have steadily increased from 1-2 weeks in 1956 to numerous months today. Depending on the type of work, it may take a year. While the delays are largely attributable to staffing and budgetary shortages that Congress could resolve, it is not within the purview of the courts to cure.
While the average pendency of a copyright application has increased significantly, there is an option to secure a copyright registration faster. When filing a copyright application, the applicant can select to file the application on an expedited basis. This often results in the Copyright Office, if appropriate, registering the copyright within 1-2 weeks. One of the reasons to apply on an expedited basis is the representation that litigation is forthcoming. However, the filing fees for applying on an expedited basis is over 10 times the normal filing fees, which can be quite costly.
Instead of dealing with expedited filing fees, it is in the interest of copyright holders to apply for protection as early as possible. If the claimant applies for copyright protection within 90 days from publication, the claimant preserves their ability to seek statutory damages and attorneys’ fees in the event of infringement. It is important that copyright holders routinely speak with an Intellectual Property attorney to review their portfolio and decide the best ways to protect their mental creations.
For any questions about copyrights, trademarks, or patents, contact Greg Popowitz.
Registered Patent Attorney
AV Rated by Martindale-Hubbell
Intellectual Property Litigation
213 East Sheridan Street, Suite 3
Dania Beach, Florida 33004