Copyright protection exist in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

“Under the Copyright Act of 1976, as amended, a copyright au- co gains “exclusive rights” in her work immediately upon the work’s creation. 17 U. S. C. §106.”

This means that copyright protection exists at the moment of creation and the work is fixed on as tangible medium, not when the author files for and/or obtains copyright registration from the government.

Registration is always recommended for many reasons, obtaining copyright registration creates a public record for the work, registered works may qualify for statutory minimum damages and claims of attorney’s fees if successful in litigation, and to bring a lawsuit for infringement of your U.S. work.

Under the Copyright Act of 1976 “A copyright owner may institute a civil action for infringement of those exclusive rights, §501(b), but generally only after complying with §411(a)’s requirement that “reg- istration . . . has been made.”

Until recently, Federal Circuit Courts were divided as to the requirement that “reg-istration . . . has been made” to file a suit for copyright infringement. Some courts followed the “registration approach” which required that a certificate of copyright registration had been issued by the Copyright Office in order to file a copyright infringement lawsuit in Federal Court. Other Courts followed the “application approach” which stands for the proposition that a lawsuit for copyright infringement could be initiated from the moment the application for copyright was filed with the US Copyright Office.

It’s well known that copyright application processing times have increased from a couple of weeks to six months or more nowadays. Even though there is an expedite procedure available in which the certificate is received in 7-15 days by paying an additional $855 in government filing fees alone, this is a costly proposition for many authors, and it is reserved for emergencies situations, such as when:

pending or prospective litigation

customs matters, or

contract or publishing deadlines that necessitate the expedited issuance of a certificate.

A recent Supreme Court Decision has clarified circuit courts splits regarding whether by filing an application for registration with the Copyright Office satisfied this requirement.

In Fourth Estate Public Benefit Corp. v. Wall-street.com, LLC, No. 17-571, 586 U.S. ___ (March 4, 2019) the U.S. Supreme Court held that “claimant may commence an infringement suit” only after the Copyright Office grants registration, not while the application is pending. Specifically, the court held that “Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” The Court also held that “Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registra- tion”.

In Fourth Estate Public Benefit Corp. v. Wall-street.com, LLC case “Fourth Estate sued Wall-Street and its owner for copyright infringement of news articles that Wall- Street failed to remove from its website after canceling the parties’ li- cense agreement. Fourth Estate had filed applications to register the articles with the Copyright Office, but the Register of Copyrights had not acted on those applications.”

The Court concluded “that “registration . . . has been made” within the meaning of 17 U. S. C. §411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application. The Court Affirmed the judgment of the Court of Appeals for the Eleventh Circuit.

Since this decision has made a pre-requisite to obtain copyright registration in order to take advantage of remedies such as minimum statutory damages and award attorney’s fees if successful in litigation, from now own copyright owners must immediately file for copyright protection as soon as possible.

I have helped countless copyright owners protect their original works of authorship in the U.S. I’d like to help by advising you on how to better protect your original works of authorship, and other intellectual property rights in the U.S. and overseas.

Augusto Perera, Esq.
Intellectual Property, Business and Legal Affairs Attorney

Augusto Perera, P.A.

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