Infringement claims may be brought only if there is an issued copyright registration

On Behalf of | Sep 22, 2022 | Copyright Law |

The Supreme Court of the United ruled in Fourth Estate Public Benefit Corp v., LLC, cleared up some contradictory rulings among the Circuit Courts. Generally speaking,  a work of authorship is  subject to copyright protection if it is sufficiently original and has been fixed in a “tangible medium of expression.” Still, the author cannot bring civil action until the work is registered with the U.S. Copyright Office (USCO).

The case

The case hinged on the fact that Fourth Estate provided articles from its website as part of a licensing agreement with, but they canceled the agreement. Fourth Estate subsequently requested that their content be removed from, but it turns out that Fourth Estate filed with the USCO its application to register its copyright, but the application was still pending.

The ruling

The 2019 ruling held that because Fourth Estate’s content was not yet registered, the claimant could not proceed with an infringement claim. However, it acknowledged that “preregistration” is available if the copyright owner-applicant is preparing to distribute content that is especially vulnerable to infringement (examples include music compositions, live broadcasts and movies). It pointed out that applicants can also pay an additional fee to expedite the application process within a few days rather than the usual several months. Copyright holders can register within three months of the infringement and still seek damages.

The contradictory circuit rulings

Before the Supreme Court ruling, the Fifth and Ninth Circuit Courts allowed protection to begin as early as the application filing date with the USCO if the applicant paid all fees and the application was complete. The Tenth and the Eleventh Circuit Courts ruled that the Copyright Office must issue the registration. In some cases, plaintiffs even filed lawsuits despite the application getting rejected. The Supreme Court sided with the Tenth and Eleventh Circuits.

Not sure about an infringement issue?

An experienced intellectual property attorney who handles copyright registration can help with the registration process. Still, those who handle copyright disputes and litigation are the ones that will help protect clients from infringers or those who overestimate the range of their copyright protections.