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Evan C. Pappas

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Co-Chair, Hospitality Group

Co-chair, Intellectual Property Group

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Copyright Registration is Now More Important Than Ever!

The Supreme Court of the United States unanimously decided an important copyright law issue previously dividing U.S. Circuit Courts for many years.  In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court held that in order to maintain a copyright infringement lawsuit, a plaintiff must first have applied for and received a copyright registration from the United States Copyright Office.  The holding is important because copyright registrations for creative works can take several months to be issued after an application is submitted – and such a delay is an unwanted hurdle for a plaintiff who may already know that someone is infringing their work.   

 

Prior to this holding, courts in some states allowed copyright plaintiff’s to file infringement complaints before a copyright registration had issued.  All that was necessary to maintain a copyright lawsuit in those jurisdictions (i.e., 5th and the 9th Circuits) was to have a completed copyright application submitted and the proper fee paid.  Now, the need for copyright registration prior to litigation is the universal law of the land.  The Supreme Court’s decision in Fourth Estate prohibits this practice and means that plaintiffs in all jurisdictions must have actually received their registration (not merely have applied for it) before filing their lawsuit.

In light of this holding, artists and other copyright owners should be thinking about copyright registration for their content well in advance of a possible lawsuit.  In fact, the earlier the better!  Waiting until someone steals your work before seeking registration limits your ability to promptly seek court intervention to stop their infringing conduct.  In addition, if you wait too long to seek registration after knowing that infringement has occurred, you may completely lose the ability to file a lawsuit.  Copyright registration is inexpensive and has many important benefits other than the right to sue.  Specifically, registration serves as a means to confirm one’s ownership in a particular work as well as its date of creation.  Copyright registration also permits an infringement lawsuit to be filed in Federal Court and makes additional statutory damages available to a successful plaintiff.

Although the advantages to early copyright registration have always been clear, this holding creates an even larger incentive for content owners to secure copyright registrations for their portfolio.  This proactive step will save time, money and aggravation while creating leverage for you in the event infringement occurs.  

For questions and/or further information on copyright registration process or copyright infringement, please contact Evan Pappas, or Kristin Biedinger in our Intellectual Property Department.

March 06, 2019

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