Today, the Supreme Court issued its decision in Fourth Estate Public Benefit Corp. v., LLC, No. 17-571, holding that the Register of Copyrights must approve or reject an application for the registration of a copyright before the copyright holder can bring a suit for infringement. The Court's ruling will make it more difficult for copyright holders to halt the infringement of unregistered works promptly.

Section 411(a) of the Copyright Act provides that a copyright owner may not file an infringement action "until preregistration or registration of the copyright claim has been made." Circuit courts have been divided on when registration is "made" under this provision. The Fifth and Ninth Circuits held that registration is "made" as soon as application to register a copyright is filed. By contrast, the Tenth and Eleventh Circuits held that registration is only "made" once the Copyright Office approves the registration.

In the Fourth Estate case, a copyright holder filed an infringement action after submitting an application for registration, but before the Copyright Office took action on the application. The district court dismissed the copyright infringement claims and the Eleventh Circuit affirmed, holding that the plain language of 411(a) requires the Copyright Office to register a copyright before the holder may file suit. Fourth Estate Pub. Benefit Corp. v., LLC, 856 F.3d 1338, 134142 (11th Cir. 2017).

In a unanimous opinion delivered by Justice Ginsburg, the Supreme Court held that "registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright." Fourth Estate Pub. Benefit Corp. v., LLC, No. 17-571, slip op. at 1 (Mar. 4, 2019). The Court relied primarily on the language of 411(a) itself, which "focus[es] not on the claimant's act of applying for registration, but on action by the Copyright Office--namely, its registration or refusal to register a copyright claim." Id. at 5. The Court noted that the plain language of 411(a) is consistent with the way the term "registration" is used elsewhere in the Copyright Act. Id. at 6-7. Moreover, the Court explained that Congress had repeatedly refused to amend 411(a) to eliminate the registration requirement for filing a lawsuit. Id. at 9.

The Fourth Estate decision is significant for copyright holders because it will hinder their ability to obtain immediate relief from a federal court upon discovering infringement of an unregistered work. Indeed, upon discovering infringement, a copyright holder could be forced to wait seven months the current average wait time for copyright registration (id. at 11) before it can file an infringement suit and seek a preliminary injunction to halt the infringing activity. While the copyright holder could request "special handling" of an application for registration, which permits expedited examination that the Copyright Office seeks to complete within five business days, waiting even one week to file an infringement suit may result in irreparable harm to some copyright holders. Companies with significant works may, therefore, wish to consider proactive registration of such works so that they can promptly file infringement suits and seek preliminary injunctive relief from the courts upon discovery of any infringement.