In Fourth Estate v Wall-Street.com, the Supreme Court affirmed that copyright holders need confirmed issuance of registration before they may file an infringement lawsuit. In its brief, Fourth Estate had claimed that since 97% of applications are granted, there is no real reason to wait to start litigation. Justice Ginsburg wrote the opinion and addressed the case as a matter of statutory interpretation, “§411(a) permits only one sensible reading: The phrase ‘registration...has been made’ refers to the Copyright Office’s act granting registration, not to the copyright claimant’s request for registration.” The Supreme Court did not consider an increased timeline a concern, as processing claims takes an average of seven months and there is a three-year window to file an infringement suit after discovering infringement.
Managing Intellectual Property contacted Finnegan partner Margaret Esquenet for her thoughts. “The three-year clock is evergreen”, Esquenet noted. “Because of the [2014 Supreme Court] Petrella case, it’s a moving target.” The Copyright Office allows for expedited registration with an $800 fee per work, which only take a few days to process. “This will be the most interesting thing for the office,” she said. “Does this decision create a new market for expedited applications? It’ll be interesting to see if there’s a substantial increase in applications that require special handlings, and if it impacts the office’s processing time.”
This case is particularly instructive for copyright owners with voluminous works like photographers or daily news writers. “Photographers are on the front lines of this”, according to Esquenet, “because of the ease with which their work is taken from one platform to the next. Any visual medium is going to be most impacted because most social media is visual, and that’s where a lot of infringement is found. Unlike in years past, copyright holders now use powerful AI to monitor these platforms, and you see more enforcement because of that.”
The Supreme Court did not consider the decision’s effect on international law as the majority of countries do not have a requirement for an application or registration in order to initiate an infringement suit. However, in 1886, the United States signed the Berne Convention, an international copyright treaty that intends to simplify copyright laws around the world.