The Supreme Court’s October 2018 term is right around the corner, and one case will have a very practical impact on prospective copyright litigation. In the Court’s only copyright case this term, Fourth Estate Public Benefit Corp. v. will settle the question of whether a plaintiff must have a valid copyright registration before filing an infringement suit or, instead, can merely have an application pending with the U.S. Copyright Office.

Fourth Estate Public Benefit Corporation is a news organization producing online journalism and licensing articles to other websites. The organization does this while retaining copyrights to the original articles, and obtained several licenses to articles produced by Fourth Estate. The license agreement between the two companies required Wall-Street to remove any content produced by Fourth Estate from its website before cancelling its account. Wall-Street, however, cancelled its account with Fourth Estate and continued to display the licensed articles on its website.

In its lawsuit for copyright infringement, Fourth Estate claimed it filed an application to register its allegedly infringed copyrights, but the Copyright Office had not yet acted on its application. The U.S. District Court for the Southern District of Florida dismissed the lawsuit in March 2016, finding the federal Copyright Act requires the Register of Copyrights must actually register (or deny) Fourth Estate’s copyright claim before the lawsuit could proceed. The U.S. Courts of Appeals for the 11th Circuit affirmed the district court’s decision in May 2017.

In relevant part, 17 USCS § 411(a) of the Copyright Act provides “[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or 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 if notice thereof, with a copy of the complaint, is served on the Register of Copyrights (emphasis added).”

The resolution of the case will settle a well-defined circuit split on the issue. The 10th and 11th Circuits have now held that copyright registration occurs only after the Copyright Office acts on a copyright application, but the 5th and 9th Circuits have held that registration occurs when the copyright holder delivers the required application, deposit, and fee to the Copyright Office.

The 10th and 11th Circuits’ “registration approach” follows a plain language reading of the Copyright Act, requiring a plaintiff to have been an issued a copyright or have the Copyright Office reject the plaintiff’s application. In affirming dismissal of the suit, the 11th Circuit plainly stated, “Filing an application does not amount to registration.” Noel Francisco, U.S. Solicitor General, filed an amicus brief on behalf of the United States, offering support for the 11th Circuit’s decision and the registration approach.

On the other hand, the 5th and 9th Circuits’ “application approach” reasons there is no requirement for filing and maintaining an infringement suit other than completing and filing a copyright application. The application approach views actual copyright registration as a formality, since an application with the Copyright Office will result in a registration or a rejection of the application – either will allow the plaintiff to proceed under the Copyright Act.

The application approach likely offers copyright owners more access to protection by decreasing costs of litigation preparation. A standard registration application with the Copyright Office incurs a governmental fee of $55, with an anticipated handling time of three to twelve months. The Office offers an expedited handling service for $800 per application, with a decision anticipated in less than two weeks. In a potential litigation involving multiple infringed works, plaintiffs would incur significant expenses seeking expedited handling to quickly meet the requirements of the registration approach. For smaller companies and individual copyright owners, the application approach is more economically feasible.

While the Supreme Court has not set a date for oral arguments yet, this case will provide clarity for copyright owners seeking to file infringement suits. The decision this term will likely eliminate forum shopping between circuits on the issue and will continue to help streamline copyright litigation, as a whole. Prospective plaintiffs will likely know exactly whether they are able to file an infringement suit based on their copyright application status.