Some copyright infringement cases involve multi-billion dollar entertainment companies, iconic literary heroes, or Hollywood superstars. Fourth Estate Public Benefit Corp. v. Wall-Street.com was not such a case. It involved a news company in a run-of-the-mill licensing agreement with a separate news website. However, the effects of the Supreme Court’s recent ruling will be significant and far-reaching.
Copyright protection covers works of artistic expression, ranging from music and sound recordings, to books and blog posts, to photographs, and even websites and computer code. A copyright exists as soon as a work is “fixed in a tangible medium of expression” (e.g. written down, saved to a hard drive, painted on a canvas, etc.). As soon as a work is “fixed,” the creator has a copyright – a bundle of intellectual property rights that can be exploited, licensed, sold, or whatever else the creator wants to do. However, there is one thing that the copyright holder may not do. With certain limited exceptions, a copyright holder may not bring a lawsuit for copyright infringement until “registration of the copyright claim has been made.” 17 U.S.C. § 411(a). Fourth Estate turned on the very prosaic but strikingly important question of what it means for registration to be made.
Conflicting decisions had been made by different appellate courts. In one view, a copyright application had to be fully processed by the Copyright Office and a certificate of registration (or, in some cases, a denial of registration) issued before a lawsuit could be initiated. In another view, merely submitting the application was acceptable. The plaintiff in Fourth Estate had filed its copyright application when it filed suit, but had not yet heard back from the Copyright Office. The Supreme Court held that this was improper. The copyright registration certificate is now, definitively, a plaintiff’s ticket into the courthouse for a copyright infringement suit.
Now, more than ever, it is important to file for copyright registration as soon as possible. Even before this decision, timely registration allowed for the possibility of benefits like statutory damages and an award of costs and legal fees. But now, a plaintiff is not entitled to any relief at all (including injunctive relief ordering an infringer to stop his infringing activity) without registration. It can take around 6 – 9 months for the Copyright Office to process an application, and the only alternative is to pay an $800 “special handling” fee to expedite the process. The better practice is to register all copyrightable works immediately after, or even before, they are released to the public. And although an application must normally be limited to a single work, various options exist to file multiple works at once, including groups of photographs, serials like magazines or newspapers, and a collection of up to 10 unpublished works of any type or types.