Copyright News

Jo Ardalan

One LLP

PRE-SUIT COPYRIGHT REGISTRATION REQUIREMENT CATCHES THE ATTENTION OF THE UNITED STATES SUPREME COURT

On January 8, 2018, the United States Supreme Court invited the Solicitor General to weigh in on when "registration" occurs in Fourth Estate Public Benefit Corporation v. Wall-Street.com LLC. ¹ Under 17 U.S.C. § 411(a), "registration" is a prerequisite to filing an infringement claim. The circuit courts are split as to whether "registration" under Section 411(a) occurs when the copyright holder simply applies for registration or whether it occurs when the Copyright Office issues the registration. The Fifth and Ninth Circuits have adopted the "application" approach,² while the Tenth and now Eleventh Circuits have adopted the "registration" approach. ³ The First and Second Circuits have noted the circuit split but have not adopted either approach,⁴while the Seventh Circuit has adopted both approaches.⁵ Although the Court has not yet granted certiorari in Fourth Estate Public Benefit, the Court’s invitation to the Solicitor General to brief the government’s view suggests that it might be heard during the upcoming Supreme Court term.