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. Wall-Street.com (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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