When Can You Sue for Copyright Infringement?

March 27, 2019

Copyright registration with the United States Copyright Office is a precondition to filing a copyright infringement lawsuit, however until earlier this month, there was a split as to when registration actually occurs. In Fourth Estate Public Benefit Corp. v., LLC, the United States Supreme Court unanimously held that registration occurs when the Copyright Office registers a copyright. The alternative view was that registration occurs when a copyright owners submits a proper application to the Copyright Office. Therefore, you must have a copyright registration certificate from the Copyright Office before filing a lawsuit for copyright infringement.

The Supreme Court’s decision provides that if infringement occurs before a copyright owner applies for registration, the owner may eventually recover damages for the past infringement, as well as the infringer’s profits. The decision does not change the requirement that the work must be registered either within three months from the date of first publication or prior to infringement in order to be eligible to seek statutory damages and/or attorney fees.

This decision reiterates the importance of submitting copyright registration applications for your creative works as soon as possible in order to have the best options available for protection of your rights. The average turnaround time on a copyright registration application is seven months, which is a long time to wait while someone is infringing upon your rights. An expedited registration process is available (called “Special Handling”), however it costs $800 as compared to the usual fees which start at $35.

Have questions about this decision and its impact on your business, or the best way to protect your intellectual property? Contact your friendly neighborhood intellectual property attorney.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University Commonwealth School of Law and works regularly with business owners and entrepreneurs. Matt is one of the founding members of the RKG Tech Law Group.