Another court has weighed in on whether simply applying for a copyright registration is sufficient for a plaintiff to bring an infringement suit, with the Eastern District of Michigan holding that an application alone—without formal registration—is insufficient.
Section 411(a) of the Copyright Act states that a plaintiff must register its copyright before filing an infringement lawsuit. But there is a circuit split as to whether a copyright is registered at the time the Copyright Office receives the application (the “application approach”) or at the time the Office actually acts on the application (the “registration approach”). The Fifth, Seventh, and Ninth circuits have adopted the application approach, while the Tenth and Eleventh Circuits have adopted the registration approach.
While the Sixth Circuit has yet to take a position on the issue, the Eastern District of Michigan inDoyle Homes, Inc. v. Signature Group of Livingston, Inc., held this month that the plain language of the statute “unambiguously supports the registration approach.” No. 14-12933, 2014 WL 6606974, at *3 (E.D. Mich. Nov. 19, 2014). The court explained that “reading the word ‘registration’ to have the atypical meaning ascribed to it under the application approach would require courts to give different occurrences of the term ‘registration’ different meanings within the same statutory provision.” Id.
Moreover, the court noted, the Copyright Office does not automatically register an application. Instead, the Register of Copyrights must first consider whether certain requirements are met, including whether the material consists of copyrightable subject matter.
In siding with the Tenth and Eleventh circuits, the district court judge noted that the Fifth and Seventh circuits adopted the application approach without analyzing the text of the statute while the Ninth Circuit unnecessarily went outside the statutory language.