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Supreme Court Rules You Must Have a Registered Copyright to Sue for Infringement

by | Mar 7, 2019 | Intellectual Property

Copyright is automatic. The second you create a unique work, you own the copyright for that work. You do not have to apply to own the copyright. You do not have to register. You do not really have to do much of anything.

Of course, that is just what is required for holding the copyright. However, if you want to sue for copyright infringement, the requirements change. At that point, you do need a copyright registration from the U.S. Copyright Office. Moreover, as the US Supreme Court unanimously decided in the case of Fourth Estate Public Benefit Corp. v Wall-Street.com, LLC, 586 U.S. ____ (2019), you must complete the entire process before you can file a copyright infringement claim. In other words, it’s not enough to have a pending application, the US Copyright Office must send you an actual copyright registration before you can proceed.

There are a few exceptions to this rule. If the work is a live broadcast, you can sue for infringement before obtaining a copyright registration. Additionally, works considered vulnerable to pre-distribution infringement (i.e., a film or music album) are eligible for pre-registration. All other works generally must be registered ahead of time.

This is a big decision by the Court, because it clearly places the onus on the copyright owner to prepare for possible infringement. If you have created a work (i.e. book, play, painting, sculpture, photograph, music, lyrics) and plan to publish the work to the public through a performance, on the Internet, in a classroom, or an art gallery show, you should file a copyright application with the U.S. Copyright Office prior to or as soon as you publish the work. Do not wait until someone has infringed on your copyright.

Currently, the processing time for a U.S. Copyright Application averages 6 months if you file the application electronically. If you file the application through the U.S. mail, the processing time is averaging thirteen (13) months. The processing time can take much longer if the Copyright Examiner who reviews your application needs clarification or additional information from you.

There is the option to request the US Copyright Office expedite a copyright application and recordation (“special handling”). You must have “a compelling need related to pending or prospective litigation, customs matters or contract or publishing deadlines.” (See Circular 4 Copyright Office Fees – Page 4.) The fee for special handling is $800 per claim. The fee for expedited recording is $550.For more information on the copyright application process, visit the U.S. Copyright Office’s website, where they provide a wealth of information on copyrights. You can also seek the advice of an intellectual property lawyer who has gone through the copyright application process and handled copyright infringement cases in a court of law.


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