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    Supreme Court - Successful Copyright Registration Needed Before Commencement of Copyright Infringement Lawsuit

    June 14, 2019





    On March 4, 2019, the Supreme Court passed down its landmark decision in Fourth Estate Public Benefit Corp. v. As a result of the ruling, a copyright registration must be successfully granted to the owner of a copyrighted work before that owner can file a lawsuit for copyright infringement. In order to understand this decision and its consequences, it is first necessary to discuss copyright law. 


    Copyright Law

    According to the Copyright Act ("Act"), copyright protection subsists automatically in anything that is (1) original, (2) a work of authorship, and (3) fixed in a tangible medium of expression. Once that copyright protection exists, the owner of the copyrighted work get "exclusive rights" in the work. For example, a writer would have the exclusive right to reproduce a novel the writer wrote. 


    If anyone exercises any of those exclusive rights without the copyright owner's permission, the copyright owner may file a lawsuit/civil action for infringement of those exclusive rights. However, according to to §411(a) of the Act, this lawsuit can only be filed only after a copyright “registration . . . has been made.” The copyright registration process starts with the filing of an application with the U.S. Copyright Office. 

    Facts of Case

    The Fourth Estate Public Benefit Corporation (Fourth Estate) is a news organization producing online journalism. Fourth Estate licensed journalism works to, LLC (Wall-Street), a news website. The license agreement required Wall-Street to remove from its website all content produced by Fourth Estate before canceling the agreement. Wall-Street canceled, but continued to display articles produced by Fourth Estate.


    Fourth Estate sued Wall-Street and its owner, Jerrold Burden, for copyright infringement. The complaint alleged that Fourth Estate had filed applications to register the articles licensed to Wall-Street with the Register of Copyrights. Because the Copyright Office had not yet acted on Fourth Estate’s applications, the District Court, on Wall-Street and Burden’s motion, dismissed the complaint, and the Eleventh Circuit affirmed. Thereafter, the Copyright Office refused registration of the articles Wall-Street had allegedly infringed.


    Supreme Court Holding

    The Supreme Court held the following:

    • Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.

    • However, upon registration of the copyright, a copyright owner can recover for infringement that occurred both before and after registration. 


    Impact of Decision

    So, what are the consequences of this decision? First, claimants in lawsuits in which a copyright registration has not been granted may drop their lawsuits or claims in their lawsuits. For example, most plaintiffs involved in the Fortnite emote lawsuits dropped their entire lawssuits due to this decision. 

    Second, there will be an exponential increase in the number of copyright application submitted to the Copyright Office. Hopefully, they have the infrastructure to handle the flood. 


    You can find a link to the Supreme Court’s decision here. For more information about copyright law, visit our blog or contact us here


    Image: "Supreme_Court_06" by US Department of State is licensed under CC BY-NC 2.0

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