Infringement claims often only valid if there is a registered copyright

On Behalf of | Sep 20, 2022 | Copyright Law, Intellectual Property Litigation |

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, something is copyrightable when the creator creates the original work and puts it in a tangible medium. Still, the creator cannot take 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 for copyright protection from the USCP, but the application was still pending.

The ruling

The 2019 ruling stated that Fourth Estate’s content was technically not copyright protected, and the claimant could not recover damages for infringement. However, it acknowledged that preregistration protections are allowed if the copyright owner-applicant is preparing to distribute something that is especially vulnerable to infringement (examples include music compositions, live broadcasts and movies). It pointed out that applicants can pay an additional fee to expedite the application process within a few days rather than the usual several months. Copyright holders can register the protection within three months of the infringement and still seek damages. Finally, the court also acknowledges that expiring copyrights may have gaps if the statute of limitations runs out before the USCP processes the new application to renew protections.

The contradictory circuit rulings

Before the Supreme Court ruling, the Fifth and Ninth Circuit Courts allowed protection to begin as early as the filing date with the USCO if it 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 real-world impact

The average person may not have previously bothered to register for a copyright, perhaps knowing they could still go to court. Those in fast-paced environments with intellectual property (such as the tech industry) may not have bothered because the application process took too long. This ruling makes it more critical than ever that individuals and businesses creating original works must take a more proactive approach to registering copyrights if they wish to enforce them.

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.