Earlier this month, in what might be viewed as the speed of light when measuring time between oral argument and decision, the U.S. Supreme Court issued two unanimous opinions construing provisions of the Copyright Act relating to procedural requirements for commencing infringement actions and interpreting the term “full costs” in awarding them to the prevailing party. This article will focus on the former, Fourth Estate Public Benefit v. Wall-Street.com, et al., No. 17-571, 2019 WL 1005829, ___ U.S. ___ (2019) (Fourth Estate).

The Supreme Court granted certiorari in Fourth Estate to resolve a split in the Circuit Courts as to whether §411(a) of the U.S. Copyright Act (the Act) could be read to allow commencement of an infringement action once an application to register a copyright with the U.S. Copyright Office is complete (the “application approach”), or, instead, only (subject to limited statutorily specified exceptions) upon issuance of the registration (the “registration approach”). Despite the split in the circuits and the various policy arguments marshaled in favor of the application approach, Justice Ruth Bader Ginsburg, writing for the court, considered the registration approach to be mandated both by the explicit language of §411(a) and by statutory exceptions which proved the general rule. Moreover, to the extent that proponents of the application approach argued for its adoption to overcome delays in application processing times, the court referred their plea to Congress, which could reduce processing delays through increased funding of the Copyright Office.

The Statutory Scheme

The registration requirement is set forth in the first sentence of §411(a), which provides that “no civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.” An exception to that requirement is set forth in the second sentence of §411(a), which states: “In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.” The third sentence of §411(a) permits the Register “at his or her option, [to] become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, … .”