The registration requirement in the Copyright Act is a well-known subject of debate, and the Eleventh Circuit recently joined the fray by siding with the registration approach camp. Now, the Supreme Court is being asked to step in and resolve the dispute once and for all.
The Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). The Supreme Court has held that compliance with the registration requirement is a clear precondition to filing suit for copyright infringement. Numerous circuits are divided, however, as to what constitutes registration. For example, the Ninth and Fifth Circuits endorse the so-called “application approach” – finding adequate the mere submission of an application for registration before bringing suit – while the Tenth Circuit follows the “registration approach” which requires the Register of Copyrights to approve or deny an application before a plaintiff pursues an infringement claim. Other circuits have spoken in unpublished opinions and in dicta with varying conclusions.
Enter the Eleventh Circuit.
In Fourth Estate Public Benefit Corp. v. Wall-Street.com, 856 F.3d 1338 (11th Cir. 2017), the Eleventh Circuit was presented with this ongoing dispute in a matter alleging infringement of online news articles. Fourth Estate, a journalism organization, alleged that it filed applications to register the copyrights in its articles prior to bringing an infringement suit, but was silent as to whether the Register of Copyrights had acted on its applications. The Southern District of Florida dismissed its complaint for failure to plead compliance with the registration requirement, and Fourth Estate appealed.
In a succinct opinion, the Eleventh Circuit affirmed the dismissal by adopting the registration approach. In doing so, the court was almost entirely reliant on the statutory language of Section 410 of the Copyright Act, which it summarized as providing that “registration of a copyright has not been made in accordance with the Copyright Act until the Register registers the claim.” The Eleventh Circuit held that simply “filing an application does not amount to registration.”
On October 13, 2017, Fourth Estate filed a cert. petition asking the Supreme Court to decide the dispute over the registration requirement. Should it accept, the resolution of the application-registration debate would be undoubtedly closely watched by copyright owners and legal practitioners alike.
