You have worked as an art teacher for over 20 years. You are both meticulous in planning and a creative mastermind. Your work has led you to create a painting program exclusively for children in your classroom. The idea catches on and a summer camp in a nearby town wants to use your program in their camp curriculum. Great news! What's next?

In this particular case, the artist contacted Philadelphia Volunteer Lawyers for the Arts (PVLA), in order to copyright her painting program as well as draft a license agreement between herself and the summer camp for use of her program the following summer. Copyrights immediately vest in an artist's work if it is fixed in a tangible medium of expression; and original. The next step, therefore, is to submit an application for registration with the copyright office and then draft a license agreement for the camp's immediate use of the program.

The process of copyright registration is relatively straightforward. A completed application for registration requires a completed registration form, a $55 filing fee, and a nonreturnable sample of the work subject to copyright to be “deposited” at the copyright office. Once the license agreement is drafted and signed, and the registration application is sent off, the last step is to wait for official registration or refusal from the copyright office.

You prepare a summer painting curriculum for the camp and the license agreement takes effect. The program is implemented seamlessly and the summer camp students respond incredibly well to your curated platform. The summer ends, the license agreement expires, and you are still waiting on your certification of registration from the copyright office. The summer camp keeps the program in place for the following summer; however, you haven't renewed the license agreement. The summer camp uses your program without your permission. What's next?

Section 411(a) of the copyright act requires a copyright registration, or refusal, to be issued by the copyright office before a copyright action can be filed, 17 U.S.C. Section 411(a). In the rare instance when a copyright is violated after application of the copyright, but before registration is issued, artists exist in a “sweet spot” and have to litigate the defense of their copyright without the required precondition of a copyright registration. A general problem with understaffing at the copyright office has widened the gap between the time of an application filing and issuance of registration to approximately two years, increasing the prevalence of artists operating in this conflicting space and leading to a split in circuit courts across the country defining the essential elements of “registration.” Some courts have interpreted this precondition loosely, requiring simply all elements necessary for registration to be present (namely, an application form, application fee, and deposit of work within the copyright office), see, e.g., Positive Black Talk v. Cash Money Records, 394 F.3d 357 (5th Cir. 2004), abrogated in part by Reed Elsevier, v. Muchnick, 559 U.S. 154 (2010); Cosmetic Ideas v. IAC/Interactivecorp.,606 F.3d 612 (9th Cir. 2010).Most recently, however, in Fourth Estate Public Benefit v. Wall-Street.com, the U.S. Court of Appeals for the Eleventh Circuit sided with the alternate definition of registration as a “certificate or refusal or registration in hand.” Although this may seem like a minimally obtrusive distinction, the consequences of the latter definition can mean the difference between winning and losing a copyright action.

In Fourth Estate Benefit Corporation v. Wall-Street.com, for example, plaintiff media organization, Fourth Estate Public Benefit Corporation (Fourth Estate), issued a license to Wall-Street.com for publication of Fourth Estate's news articles on defendant's website. Wall-Street.com continued to circulate plaintiff's articles after expiration of the parties' license agreement. Fourth Estate's copyright application, however, lingered in the sweet spot, after its application filing and before issuance of its registration. Citing the language of the Copyright Act, the Eleventh District held that Fourth Estate failed to meet the precondition of registration and ultimately dismissed the case. Consequently, Fourth Estate's copyright litigation claim was unsuccessful.

The two main hurdles for copyright holders in this sweet spot to overcome, therefore, exist within the interpretation of “registration” by its respective circuit court and the staffing issues at the copyright office holding up registrations, at the cost of protection of the artist's work. This sweet spot, between application and issuance of registration, is exactly where our client ended up after the summer camp continued using her programming without a license. The interpretation split of the term “registration,” as defined by Section 411(a) of the Copyright Act, however, has not yet been decided by the Third Circuit, which sits in Philadelphia.

If the Third Circuit adopts the reading of “registration” as interpreted by the Eleventh Circuit, it would leave many artists without a remedy for copyright infringement claims, as a result of delays caused by the copyright office, rather than as a result of a refusal of the copyright on its own merits.

Alternatively, the Third Circuit could interpret registration as a complete application, as adopted by the Fifth and Ninth Circuits, leaving open the possibility for artists to initiate a copyright action prior to receiving an actual refusal or certificate of registration by the copyright office. Although it is relatively rare for an artist to find themselves waiting for issuance of a copyright registration while initiating a copyright action, it is this this sweet spot that a mere delay in registration from the copyright office translates into a denial of justice for the artist.

Emilie Pitts is the manager of legal services at Philadelphia Volunteer Lawyers for the Arts. PVLA, a program of the Arts + Business Council of Greater Philadelphia, provides pro bono legal assistance to low-income artists, small budget nonprofits, collectives and startups. To learn more or to volunteer, visit http://artsbusinessphl.org/philadelphiavolunteerlawyersarts/ or contact Emilie Pitts at 2157903822 or [email protected].

You have worked as an art teacher for over 20 years. You are both meticulous in planning and a creative mastermind. Your work has led you to create a painting program exclusively for children in your classroom. The idea catches on and a summer camp in a nearby town wants to use your program in their camp curriculum. Great news! What's next?

In this particular case, the artist contacted Philadelphia Volunteer Lawyers for the Arts (PVLA), in order to copyright her painting program as well as draft a license agreement between herself and the summer camp for use of her program the following summer. Copyrights immediately vest in an artist's work if it is fixed in a tangible medium of expression; and original. The next step, therefore, is to submit an application for registration with the copyright office and then draft a license agreement for the camp's immediate use of the program.

The process of copyright registration is relatively straightforward. A completed application for registration requires a completed registration form, a $55 filing fee, and a nonreturnable sample of the work subject to copyright to be “deposited” at the copyright office. Once the license agreement is drafted and signed, and the registration application is sent off, the last step is to wait for official registration or refusal from the copyright office.

You prepare a summer painting curriculum for the camp and the license agreement takes effect. The program is implemented seamlessly and the summer camp students respond incredibly well to your curated platform. The summer ends, the license agreement expires, and you are still waiting on your certification of registration from the copyright office. The summer camp keeps the program in place for the following summer; however, you haven't renewed the license agreement. The summer camp uses your program without your permission. What's next?

Section 411(a) of the copyright act requires a copyright registration, or refusal, to be issued by the copyright office before a copyright action can be filed, 17 U.S.C. Section 411(a). In the rare instance when a copyright is violated after application of the copyright, but before registration is issued, artists exist in a “sweet spot” and have to litigate the defense of their copyright without the required precondition of a copyright registration. A general problem with understaffing at the copyright office has widened the gap between the time of an application filing and issuance of registration to approximately two years, increasing the prevalence of artists operating in this conflicting space and leading to a split in circuit courts across the country defining the essential elements of “registration.” Some courts have interpreted this precondition loosely, requiring simply all elements necessary for registration to be present (namely, an application form, application fee, and deposit of work within the copyright office), see, e.g., Positive Black Talk v. Cash Money Records, 394 F.3d 357 (5th Cir. 2004), abrogated in part by Reed Elsevier, v. Muchnick, 559 U.S. 154 (2010) ; Cosmetic Ideas v. IAC/Interactivecorp.,606 F.3d 612 (9th Cir. 2010).Most recently, however, in Fourth Estate Public Benefit v. Wall-Street.com, the U.S. Court of Appeals for the Eleventh Circuit sided with the alternate definition of registration as a “certificate or refusal or registration in hand.” Although this may seem like a minimally obtrusive distinction, the consequences of the latter definition can mean the difference between winning and losing a copyright action.

In Fourth Estate Benefit Corporation v. Wall-Street.com, for example, plaintiff media organization, Fourth Estate Public Benefit Corporation (Fourth Estate), issued a license to Wall-Street.com for publication of Fourth Estate's news articles on defendant's website. Wall-Street.com continued to circulate plaintiff's articles after expiration of the parties' license agreement. Fourth Estate's copyright application, however, lingered in the sweet spot, after its application filing and before issuance of its registration. Citing the language of the Copyright Act, the Eleventh District held that Fourth Estate failed to meet the precondition of registration and ultimately dismissed the case. Consequently, Fourth Estate's copyright litigation claim was unsuccessful.

The two main hurdles for copyright holders in this sweet spot to overcome, therefore, exist within the interpretation of “registration” by its respective circuit court and the staffing issues at the copyright office holding up registrations, at the cost of protection of the artist's work. This sweet spot, between application and issuance of registration, is exactly where our client ended up after the summer camp continued using her programming without a license. The interpretation split of the term “registration,” as defined by Section 411(a) of the Copyright Act, however, has not yet been decided by the Third Circuit, which sits in Philadelphia.

If the Third Circuit adopts the reading of “registration” as interpreted by the Eleventh Circuit, it would leave many artists without a remedy for copyright infringement claims, as a result of delays caused by the copyright office, rather than as a result of a refusal of the copyright on its own merits.

Alternatively, the Third Circuit could interpret registration as a complete application, as adopted by the Fifth and Ninth Circuits, leaving open the possibility for artists to initiate a copyright action prior to receiving an actual refusal or certificate of registration by the copyright office. Although it is relatively rare for an artist to find themselves waiting for issuance of a copyright registration while initiating a copyright action, it is this this sweet spot that a mere delay in registration from the copyright office translates into a denial of justice for the artist.

Emilie Pitts is the manager of legal services at Philadelphia Volunteer Lawyers for the Arts. PVLA, a program of the Arts + Business Council of Greater Philadelphia, provides pro bono legal assistance to low-income artists, small budget nonprofits, collectives and startups. To learn more or to volunteer, visit http://artsbusinessphl.org/philadelphiavolunteerlawyersarts/ or contact Emilie Pitts at 2157903822 or [email protected].