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Part 2: Court watchers speculate about Fourth Estate arguments

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

In this second part of our look at the January 8 oral argument before the U.S. Supreme Court in the case of Fourth Estate Public Benefit Corporation v., LLC, we will consider what legal professionals are surmising from the justices' questions and comments.

As we have discussed, the court likely agreed to hear this case because of a circuit split among U.S. Courts of Appeal on the main issue: Whether the right to sue for copyright infringement in federal court begins when the copyright owner files a complete registration application with the U.S. Copyright Office or when the registrar has completely processed the application and has either issued the certificate of registration or rejected the application.

These positions are referred to as the application approach and the registration approach, respectively. The issue turns on the meaning of "registration" in the relevant section of the Copyright Act.

Hints from the bench?

Eight of the nine justices participated in argument, with Justice Ruth Bader Ginsburg's absence. According to SCOTUSblog, the court has said that she will still weigh in on the decision after reviewing the parties' briefs and the transcript of the argument.

SCOTUSblog analyzes commentary and questions the justices made during argument:

  • Justice Kagan is leaning registration approach: SCOTUSblog described Justice Elena Kagan's comments that the construction of the relevant statute suggests that "registration" means the registrar has made a decision on an application.
  • Chief Justice John Roberts may favor registration approach: The Chief Justice noted that the Copyright Act gives benefits to copyright owners who have received certificates of registration and that a court must know if the registrar has granted or denied the application, according to SCOTUSblog. In addition, IP Watchdog reports that he said, "in a situation where you've got a registrar ... the most likely understanding of 'registration' is what that person does."
  • Justices Neil Gorsuch and Kavanaugh may lean application approach: Both reportedly expressed concern about damage to the interests of copyright owners if they must wait until the registrar decides whether to certify or deny applications to file infringement suits. (According to IP Watchdog, applications take two to 15 months to be processed.)

The lawyers who wrote the IP Watchdog article say that the registration approach is expected to prevail and that if so, people will likely turn to the expedited special handling application available in anticipation of litigation; it's supposed to be expedited but can be weeks of delay (that perhaps may worsen if the registration approach becomes the law throughout the U.S.)

We await with interest the court's decision and will keep readers apprised.

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