Does Registration Mean Registration: When Can Copyright Holders Sue?

Background

Copyright law protects the exclusive rights of creators of works—like novels, songs, computer software, and even fictional characters. These rights include the distribution and reproduction of copyrighted works and the power to assign or transfer those rights. In the United States, the copyright symbol “©” may serve to provide notice to potential infringers that the creator’s work is protected. But the symbol does not mean that the federal government specifically granted it copyright protections. Copyrights do not need to be registered with the federal government to be protected. Original works are under copyright protection once created and “fixed in a tangible medium of expression.” The owner of a copyright may register it at any time during (or before) the term of the copyright – usually 70 years after an individual creator’s death.

Issue

While registration is not required for copyright protection, it is required for filing a lawsuit to enforce a copyright. Before the enactment of the Copyright Act of 1976, copyright law varied from state to state and so did the conditions necessary for copyright enforcement. The act created a uniform system of copyright enforcement. Section 411 of the Copyright Act provides that “no 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 statute prescribes steps in the registration process but does not define when “registration” has occurred to allow a copyright owner’s infringement suit. Courts are split on whether “registration” occurs upon submission of an application for registration (the “application approach”) or upon approval of the registration application (the “registration approach”).

The Split

In Cosmetic Ideas v. IAC (2010), the Ninth Circuit adopted the application approach, which relies more on the purpose of the statute than on a plain language interpretation of the text. In trying to interpret “registration” under § 411 of the Copyright Act, the Ninth Circuit started with the plain language of the statute and referred to § 101 of the Act which defines “registration” as “a registration of a claim in the original or the renewed and extended term of copyright.” The court concluded that the definition was “unhelpful” and provided no guidance in interpreting the meaning of “registration.” The court then examined the statute as a whole, finding ambiguity—it then concluded that the Act’s “plain language” unequivocally supported either interpretation, and that it must “go beyond . . . the plain language to determine which approach better carries out the purpose of the statute.” Ultimately, the court adopted the application approach, finding that its efficiency accomplished the central purpose of registration – a robust national register of existing copyrights.

On the other hand, in Fourth Estate Pub. v. Wall-Street.com (2017), the Eleventh Circuit adopted the registration approach. In Fourth Estate, the court based its reasoning primarily on the language of the Copyright Act. It reasoned that the text “makes clear” that the registration approach is correct. The Eleventh Circuit rejected appeals to the legislative history and the policy of the Act, finding that the Act’s words “are unambiguous” and no further inquiry is required.

Looking Forward

Despite the registration requirement’s prior treatment by circuit courts as jurisdictional, the US Supreme Court held in Reed Elsevier, Inc. v. Muchnick (2010) that not fulfilling the registration requirement does not deprive a federal court of subject matter jurisdiction over a case. However, the Court in Reed Elsevier did not tackle the circuits’ different approaches to defining registration. A resolution may nonetheless be on its way thanks to the Fourth Estate case. A petition for certiorari to the Supreme Court filed in October 2017 is currently pending. The Court has invited the Solicitor General to file a brief expressing the views of the United States on the case. There is a good chance that the Supreme Court will grant certiorari given that the case involves statutory interpretation and there is a clear circuit split. Otherwise, an amendment to the statute may be needed to resolve the issue.