Hear ye, hear ye! This week the Supreme Court of the United States of America has issued a unanimous ruling! Yes! This Court! Unanimous! And, appropriately, the unanimous opinion was delivered by Justice Ruth Ginsburg after returning to work post cancer surgery. The case: Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No. 17-571.

What’s the issue that has unified this Supreme Court? Copyright Law.

Could you break that down for us a bit Mr. Davis? My pleasure. Glad you asked.

Under U.S. Copyright Law, when you create copyrightable subject matter (for example, that new article, book, script, song, sketch, sculpture, photograph, etc.) you own the copyright. It’s yours. There is, however, a caveat. If you were commissioned to do the work and signed a “work made for hire” agreement, or you created the work as part of your job, the copyright belongs to the party who commissioned the work, or your employer, respectively.

With that short explanation out of the way, by way of background, what happens if someone infringes your copyright? Can you march to the nearest federal courthouse and file suit? The federal circuit courts of appeal across the country have been split on what is required of the copyright owner before he/she can file that federal lawsuit. Some have held as long as prior to filing the lawsuit the copyright owner applied to the Copyright Office for registration of the work, the lawsuit can go forward. Others, on the other hand, have held that an issued registration from the U.S. Copyright Office is a prerequisite to bringing the lawsuit.

Monday, the Supreme Court resolved the slit between the Circuits by holding that a copyright owner cannot file a lawsuit for copyright infringement until the U.S. Copyright Office has issued a registration for the work at issue. In coming to this conclusion the Supreme Court analyzed the express language of the Copyright Law. In the law there is a specific requirement that a work be registered before a lawsuit is filed. That means, the Court reasoned, the Copyright Office must first act by issuing the registration.

What does this mean for you, the creative? Given that it takes several months between the time an application for registration is filed and the time the registration is issued by the Copyright Office, it is unwise to wait until there is a problem to apply for registration of your copyright(s). Don’t procrastinate. There are other statutory reasons for registering your copyright before infringement, but this one alone should be a wake-up call.

©2019 Albert F. Davis, Esq.


This law update is intended for general information purposes only.  One should not consider the update legal advice or legal opinions relating to any specific facts or circumstances.  An attorney-client relationship is not created by reading this update.  Please feel free to contact A.F. DAVIS LAW for further information.