When is a Copyright (Registration) Effective?
One of the basic tenants of copyright law is that you, the creator, own your copyright at the time of creation. You get this right when you make your original work in a tangible medium. But the second step in protecting your work is to register it with the US Copyright Office. The Supreme Court recently took up this issue in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, et al.
One of the best parts of copyright law is that technology pushes the courts to keep up with the times. So it is with some regularity that the Supreme Court of the United States (SCOTUS) examines a copyright issue. This was the case on January 8, 2019 when SCOTUS held Oral Arguments* on a seemingly simple question: is a copyright registration effective when the creator submits the application, pays the fee, and submits a deposit copy of the work OR is it effective when the Registrar of Copyrights issues the registration certificate?
Why It Matters
Well, one of the first things you have to have before you can take any kind of judicial action on a copyright infringement is a registered copyright. The Copyright Office right now is quoting between 2-15 months for your claim to be processed. Obviously, that is a super long time! But the Office also offers expedited registration, which many who are looking to file suit may use. The issue here is that it costs $800 to use this option. Additionally, in the time it takes the work to be registered, even if it is expedited, the work can be distributed and infringed throughout the world!
What SCOTUS Asked
When a case gets in front of SCOTUS, the first time the attorneys get to present their case to the Justices is during Oral Arguments. These are a rapid-fire question and answer session where the Justices ask both sides challenging and detailed questions, and the attorneys have to have the answers.
A few weeks ago, these arguments occurred, and legal nerd I am, I listened to the audio of the questioning. You can too, right here! For years, many copyright attorneys advised clients that the registration would be effective based on when you submitted the materials. Later this year when SCOTUS rules on this issue, that may change.
It is a very dangerous game to try to predict how the Justices will rule based on the questioning. The argument period is designed to examine the strengths and weaknesses in each side’s case. But based on the questions asked and the answers given, I think it is likely SCOTUS will side with the Copyright Office and determine that registration is effective when the Registrar issues the certificate. As an attorney who represents many creators, I think this adds another hurdle to the process. I think there will be an uptick in expedited registrations as creators try to get their works registered quickly. Additionally, I would expect an uptick in cases throughout the nation that are thrown out due to these procedural issues, and not on the merits.
But it is all up to SCOTUS now! You can be sure when the opinion comes down I will be writing about it here!