The Requirement of Registration of Copyright

In the crazy business of music that we love, attention to detail is always important. And as the world of showbiz takes many unpredictable turns, an otherwise harmless occurrence of lack of attention can be magnified to one of big-time harmful proportion.

It's a pretty good bet that Fourth Estate Public Benefit Corporation, a producer of online journalism content, never saw itself as a petitioner in the Supreme Court of the United States. The vast majority of lawyers and litigants of all kinds never see one of their cases be granted writ of certiorari and go before the nine justices for briefing and argument.

But in Fourth Estate vs. Wall-Street.com, LLC, the justices of our nation's highest court saw the opportunity to clarify the legal standard for the right to sue for copyright infringement. And it didn't take long for Justice Ruth Bader Ginsburg to lay down the law in a unanimous opinion - Formal registration by the U.S. Copyright Office is required before an infringement suit may be commenced. Once this formal registration occurs, the holder of a copyright may recover damages in court based on infringement that happened before and after registration.

Even though this lawsuit did not involve copyrights for musical compositions or sound recordings, it has strong implications for the music industry. It is difficult to advise a developing songwriter or recording artist in the early stages of his or her career to pay a minimum of $35 to process registration for every song or sound recording that he or she produces individually. But with an average wait time of seven months for full registration to process, time could be of the essence in a business that has its cutthroat side. I encourage any reader of this blog to weigh in on your angle regarding copyright registration and which creative works should be registered. Feel free to comment (respectfully, of course) here or via social media.

Fourth Estate licensed certain content to Wall-Street pursuant to requirement of take down prior to the cancellation of the licensing agreement. Wall-Street cancelled the agreement but left the articles on its site. This resulted in the action for infringement. Fourth Estate had filed applications for registration of the articles but was still in the waiting period when it filed the infringement suit. Wall-Street filed a motion to dismiss, and this was granted by the trial court and affirmed by the Eleventh Circuit Court of Appeals.  

The analysis in this case focuses on the reading of a few lines of section 411 of the Copyright Act of 1976: 

"... 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."

For those of your wondering about rights that you automatically have when you write your songs or record your music, wonder no more. You do indeed have some exclusive rights immediately upon creation of your product. For instance, you have the right to reproduce your work and to perform your work publicly.

But court action requires registration. As often is the case in the legal world, there are exceptions. Copyright claimants may apply for preregistration in certain instances where a work is vulnerable to predistribution infringement. A musical composition is one example of such a type of work. However, any suit brought in reliance on preregistration pursuant to section 408 of the Copyright Act risks dismissal unless full registration is applied for promptly after the preregistration.

Largely because of the logistics of the language of section 411, the court rejected the "application" approach advocated for by Fourth Estate and accepted the "registration" approach in affirming the dismissal of the lawsuit.

Remember that www.copyright.gov is one awesome resource for creative types who need to register copyrights or find out more information about copyright.