SCOTUS Resolves Court Split in Fourth Estate, but Registration Concerns Remain

by | Mar 5, 2019 | Copyright Alliance, Copyright Reform, Strictly Business Blog

Editor’s Note: ASMP is a member organization of the Copyright Alliance. 

Cross-posted from

[by Terry Hart]

Today, the Supreme Court released its decision in Fourth Estate Public Benefit Corp. v., holding that a copyright owner of a U.S. work must wait for the Register of Copyrights to either issue a registration certificate or refuse a registration before being able to protect her rights in court (this has been referred to as the “registration approach”). The decision settles an issue that has long divided courts—some courts had held that a copyright owner did not have to wait for the Register to act and could file suit as soon as her registration application, deposit, and fee were delivered to the U.S. Copyright Office (called the “application approach”).

In a brief, unanimous decision, Justice Ginsburg likened the registration requirement “to an administrative exhaustion requirement that the owner must satisfy before suing to enforce ownership rights.” In concluding that the Copyright Act supported the registration approach, Justice Ginsburg stuck to the language of the statute. However, she finished her opinion with a nod to the policy concerns raised by the registration approach, saying,

True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. Unfortunate as the current administrative lag may be, that factor does not allow us to revise §411(a)’s congressionally composed text.

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