There’s been a nagging – and potentially serious – discrepancy in copyright case law that the U.S. Supreme Court finally resolved. It involves when the owner of a copyright can sue for infringement.
Some federal circuits held that a lawsuit can be filed by a copyright owner as soon as a copyright application has been filed; others held that the copyright application had to secure registration before an infringement action could be brought.
Justice Ruth Bader Ginsberg settled the matter by writing in the court’s opinion that, despite growing delays in the registration approval process owing to the increasingly large number of applications being filed, Congress created a specific method for proving ownership of a work. Administrative delays don’t override Congressional intent.
Narrow Case, Broad Implication.
The Supreme Court case stems from a lawsuit filed by a journalism collective against a website that took its articles. When an agreement between the two parties expired, the website did not remove the pieces and the collective filed an action which led to the challenge whether the plaintiff had to wait for its copyrights to be approved before suing.
The case hinged on a fairly narrow legal point that will have widespread implications.
For instance, the Authors Guild filed an amicus brief with the Supreme Court arguing that filing an application was sufficient to assert ownership. On the other hand, a group called Public Knowledge told the court that Congress had good reason to provide for approval of an application as the means of keeping a comprehensive record of who owns copyrighted works.
The decision could have a major impact on the entertainment industry, which Justice Ginsberg recognized and took into account.
She wrote that “If a copyright owner is preparing to distribute a work of a type vulnerable to pre-distribution infringement – notably, a movie or musical composition – the owner may apply for registration. Even in these exceptional circumstances, the copyright owner must eventually pursue registration in order to maintain a suit for infringement.”
But other than in the two circumstances involving movies and music, especially for a musical motion picture, that Justice Ginsberg noted the horse must be in front of the cart and approval of the registration is required before a suit can be initiated.
File Early for Copyright Protection
The U.S. Copyright Office says it takes an average of seven months to approve or reject a copyright, but notes that it can take even longer in some circumstances.
The Supreme Court’s ruling reinforces a point that I make regularly to clients as a copyright attorney: File for registration as early as possible. This advice is even more applicable after the Supreme Court’s decision. Failure to file timely before infringement occurs has always had consequences. It now makes it more difficult to quickly file a lawsuit asserting copyright infringement.
There are provisions for expedited registration and the office tries to deal with special handling requests within five working days. However, doing so is very expensive for the filer: As much as $1,350 per application, as opposed to the $35-to-$55 fee for a regular filing.
Business Must Act
For many different types of “creators,” the decision means they must adjust how they handle material that is eligible for a copyright.
- For content creators, an application should be filed as soon as the work is prepared even if the content is months away from being introduced and even if no decision has been made as to whether the offering will be commercially viable.
- Authors should seek copyright protection when a story, book, article or script is as close to a final version as they can get it; especially for screenwriters, Hollywood is notorious for stealing concepts from unknown writers and expropriating them.
- Often, songwriters don’t bother with submitting a copyright application for a new creation before submitting it to artists or record labels which the new Supreme Court ruling indicates won’t offer any protection if their song is stolen.
If you have any questions about how the new Supreme Court ruling may affect you, feel free to give me a call.