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  • Henry Park

What is copyright registration for a lawsuit?

Before a U.S. work can be asserted in a lawsuit, it has to be registered with the U.S. Copyright Office. 17 U.S.C. § 411. But, what does it mean to be registered?

In the 10th and 11th Circuit Court of Appeals, copyright registration means that the U.S. Copyright Office must have issued a copyright registration. In the 5th and 9th Circuit Court of Appeals, copyright registration means that the copyright owner has submitted a copyright application.

In July, the U.S. Supreme Court took up this issue when it granted certiorari in Fourth Estate Public Benefit Corp. v. (see link).

This is an important case because it affects when a copyright owner can initiate a lawsuit. If the Supreme Court holds that a copyright registration is required, then copyright owners will be forced to wait for a registration to issue. Registration is not a speedy process, and it typically takes on average 7-9 months (see link). A copyright owner can pay an additional $800 fee to expedite registration (see link).

While some creatives register their works, many do not. To a copyright owner of an untimely registered work, who can only recover actual damages and infringer's profits related to the infringement, the $800 fee is prohibitive. And, it will encourage infringers to unlawfully use works because they know that the copyright owner has more steps to go through to recover damages.

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