ASMP — American Society of Media Photographers

The “Application Approach” to Copyright Died Today

By March 7, 2019Legal

Cross-posted from

[by Thomas Maddrey]

On January 8, 2019, the Supreme Court of the United State (SCOTUS) heard arguments in Fourth Estate Public Benefit Corporation v., LLC. Today, the court handed down their ruling. The court held, “… registration occurs, and copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” Let’s dive into this and see what it means in the real world.

The Background

In a blog post I wrote just last month entitled “When is a Copyright (Registration) Effective?” I recounted my interpretation of the arguments heard in this case. The main question was this: is registration effective when the creator sends in the completed application, copy of the work, and application fee? Or is registration only effective when the Registrar of Copyrights issues the certificate (or denies the registration)? Put simply, when is a work considered registered?

This matters because the text of the Copyright Act says that “no civil action for infringement of copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. §411(a). Again, in a nutshell, you can’t sue someone for infringement until you have “registered” your work.

Application Approach or Registration Approach

Like many others in the creative world, I believe that when the creator has performed all the actions required, they should be able to seek the remedies of the court system in protecting their work. And the appellate court that covers my home state of Texas agreed with me. In the 5th Circuit Court of Appeals, rulings have held that the “application approach” is the way to go. And many others courts have agreed.

But not SCOTUS. Agreeing with the 11th Circuit, Justice Ginsburg, writing for an undivided 9-0 panel, made the decision that the text of the Copyright Act, the history, and the circumstances led to the inescapable conclusion that it is only when works are decided upon and registration issued (“registration approach”) that a creator can exercise their rights.

The application approach has died.

What This Means + Good News

Frankly, the actual import of this ruling may only matter to a small group of copyright claimants each year. The remainder, however, will have to become mindful of the new calculus. Most copyright attorneys (myself included) have told clients for years that their job is done when they submit the works for registration. This advice will not change, as I will describe below, but the reasoning has.

The good news is this: even though you cannot bring suit until you have a determination from the Registrar, when you do make it to court, you can collect damages for infringement that has occurred both before and after registration.

But I suspect we will see more use of expedited processing and registration for works that allow it. And that means more cost and expense for creators, two things the community does not need.

Like all of law, the devil is in the details, and there are instances where mass proliferation and infringement can occur rapidly which would be affected by the ruling today, but those cases are outside the scope of this post. I will examine this more in the months to come as we find out how this ruling changes the cases currently in litigation.

Thomas Maddrey is counsel for ASMP.  Read more of his blog posts about copyright and other legal topics at maddreypllc.

Featured Image © ASMP Pro Member Rob Lang

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