As an update to our earlier reporting, the U.S. Supreme Court has finally resolved the circuit split in the federal courts of appeals regarding whether a copyright infringement plaintiff can file an infringement suit in federal court upon merely filing an application to register a work with the U.S. Copyright Office (the “application approach”) or only after the Copyright Office has actually issued a copyright registration (the “registration approach”). 

Justice Ginsburg delivered the unanimous opinion of the Court holding that the Eleventh Circuit’s “registration approach” was the correct requirement imposed by the Copyright Act. The Court held that “[t]he phrase ‘registration . . . has been made’ refers to the Copyright Office’s act of granting registration, not to the copyright claimant’s request for registration.”  Ginsburg also highlighted some important factors that support and strengthen this view. First, she reasoned that Section 411(a) of the Copyright Act allowing an exception in which a party can file an infringement suit after an application to register a copyright had been filed would be superfluous under the application approach. In addition, Section 408 allows for the “preregistration” of certain works especially vulnerable to prepublication infringement and the filing of an infringement suit prior to completion of the registration process for such works. This provision would also have been completely unnecessary if the application approach was the correct approach.  Finally, in 1993 Congress rejected a bill that would have allowed for parties to file an infringement suit simply upon filing an application for registration with the Copyright Office. 

Ginsburg also acknowledged the delays in the Copyright Office’s processing of copyright registration applications, but nevertheless advised that only Congress could address the delays and it was not the responsibility of the courts to do so. 

In view of the Court’s opinion in this matter, copyright owners would be well advised to promptly apply to register all important works in order to avoid complications in enforcing their rights in the event of infringement.