When is the Right Time to Apply for Federal Copyright Protection?

By: Dan Honz

Copyrights provide protection for original works of authorship fixed in a tangible medium of expression.  For business owners, these works can include computer software, architectural plans, literary works, graphics, website content, and other works commonly used and viewable by the public.  Copyright exists from the moment the work is physically or digitally created and involves rights of reproduction, distribution, and display.  Why then, does timing of registration come into question?  One answer comes from a recent Supreme Court case dealing with the ability of a copyright owner to bring a lawsuit for infringement.

 A copyright owner must request federal registration of an original work through an application process to receive the benefits of federal copyright protection.  One of these benefits includes the ability to bring a civil lawsuit for infringement to be heard in federal courts.  Circuit courts were split on whether the act of filing an application for copyright registration was enough to bring suit in federal courts, or whether the work must be officially registered.  The Supreme Court recently held that the Copyright Office must actually register the copyright before an infringement suit can properly be filed. Fourth Estate Public Benefit Corp. v. Wall-street.com, LLC, No. 17-571, 586 U.S. ___ (2019).   The Copyright Office can take months before issuing a registration, so the timing can affect a substantial period of time that an accused infringer can operate before the infringement suit can be made.

 Not all works require full registration to institute an infringement suit.  Some works can receive a preregistration review at the Copyright Office to provide copyright owners an opportunity to file an infringement suit before full registration.  For example, the Court noted that “If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement—notably, a movie or musical composition—the owner may apply for preregistration.” Id. at slip op. at 1.

 For business owners, the practical benefits of registration can provide tools to dissuade infringers from continuing activities such as during cease and desist communications. The Copyright Office does provide expedited review, but copyright owners can lower costs and lessen headaches by evaluating valuable copyrights that have a likelihood of infringement and registering those works.

 If you need assistance in evaluating your copyright portfolio or the registration process, we are here to help.

Rebecca Bortolotti