Addressing the regional circuit split over whether copyright registration occurs when a copyright application is filed or when the Register of Copyrights registers the copyright, the US Court of Appeals for the 11th Circuit followed the latter approach, affirming the district court’s dismissal of a copyright infringement suit where the plaintiff’s application had been filed, but not yet approved or denied, prior to filing suit. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, Case No. 16-13726 (11th Cir., May 18, 2017) (Pryor, J).
Fourth Estate is a news organization that licenses online news articles. Wall-Street.com, one of Fourth Estate’s customers, continued to display its licensed articles even after termination of its account with Fourth Estate. Fourth Estate sued Wall-Street.com for copyright infringement, alleging in the complaint that it had filed applications to register the relevant articles with the Register of Copyrights. Wall-Street.com moved to dismiss, arguing that the Copyright Act only allows for an infringement suit once the copyright application has been approved or denied.
The Copyright Act (§ 411(a)) requires that a copyright be registered before a copyright owner can assert a claim of infringement:
No civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement.
The question presented on appeal was whether registration occurs when the application has been either denied or approved (registration approach), or when the copyright deposit, application and required fee for registration have been filed (application approach).
The 11th Circuit acknowledged that its sister courts are divided on the issue. The 10th Circuit follows the registration approach, whereas the Ninth and Fifth Circuits follow the application approach. The Eighth Circuit endorsed the application approach in dicta, while Seventh Circuit case law contains conflicting dicta. The First and Second Circuits, while acknowledging the split, have declined to follow either approach.
The 11th Circuit agreed with the district court, stating, “the text of the Copyright Act makes clear that the registration approach . . . is correct.” In reaching this conclusion, the Court examined various sections of the Copyright Act, especially § 401(a), and concluded that “an application alone is insufficient for registration.” The Court dismissed Fourth Estate’s argument that the three-year statute of limitations for copyright infringement suits supported the application approach:
True, an owner who files an application late in the statute of limitations period risks losing the right to enforce his copyright in an infringement action because of the time needed to review an application. But this potential loss encourages an owner to register his copyright soon after he obtains the copyright and before infringement occurs.
The Court declined to assess the legislative history and policy arguments, finding it unnecessary where “the words of the statute are unambiguous.”