The U.S. Supreme Court rendered a unanimous decision in an opinion penned by Justice Ruth Bader Ginsburg regarding whether 17 U.S.C. § 411’s requirement that “registration” must be “made” requires the Copyright Office to issue a registration (the “registration approach”), or merely requires plaintiff to apply for one (the “application approach”) before a lawsuit is filed. Based on the text and structure of the Copyright Act, the Court adopted the “registration approach,” resolving a circuit split. Fourth Estate Public Benefit Corp. v., LLC , No. 17-571 (S. Ct. March 4, 2019).

In doing so, the Court reasoned that section 411 focuses on Copyright Office action (as opposed to the applicant/plaintiff’s actions), and that section 411’s second sentence (authorizing suit if the Office refuses registration) would be superfluous under the “application approach.” The Court rejected assertions that the second sentence of section 411 merely required litigants to notify the Copyright Office, as this relied on the “implausible assumption that Congress gave ‘registration’ different meanings inconsecutive, related sentences within a single statutory provision.” As to the third sentence of section 411, which allows the Office to intervene on issues of registrability, the Court noted the “application approach” frustrates the Office’s right to intervene before a Court decides such issues.

Going beyond section 411, the Court found section 410 indicated that “application” precedes “registration,” highlighting the distinct meanings of those terms, and further noted that section 408(f)’s preregistration suit option (for works vulnerable to predistribution infringement), as well as the preregistration process itself, would be essentially useless if an applicant could sue independent of 408(f).

In favor of the “application approach,” Fourth Estate argued that the Act, when using “make registration” or “registration… has been made” refers to an applicant’s submissions rather than Office’s determinations, citing 17 U.S.C. §§ 110, 205(c), 408(c)(3), 411(c), 412(2)) as provisions where those or similar phrases describe applicant’s conduct rather than Office determinations. Yet the Court reasoned that because other provisions use “registration” to refer to Office activity, e.g. 17 U. S. C. §708(a), the specific context in which “registration” is used determines its meaning. Here, the Court found, all three sentences of section 411 clearly favor the “registration approach.”

Fourth Estate also argued that the “application approach” favored copyright owners’ need enforce their rights (obtained at the moment a work is created) against infringement occurring before a backlogged Copyright Office decides issues of registrability. Yet the Court explained that registrants can, in fact, recover for pre-registration infringement; they simply must await the Register’s decision on registrability first. Such result is consistent with the text and structure of the Copyright Act, which retained section 411(a) despite efforts to eliminate it, and which contains exceptions to 411(a)’s requirement that the “application approach” would render useless.

In sum, while acknowledging that registration delays at the Copyright Office have increased due to administrative lag from staffing and budgetary shortages, the Court noted this was no basis to revise section 411(a)’s “congressionally composed text.” Accordingly, the Court resolved the circuit split on the construction of section 411 in favor of the “registration approach,” affirming the Eleventh Circuit.