Faced with a motion to dismiss for lack of subject matter jurisdiction in a copyright infringement suit involving mechanical drawings, one issue before the court was whether an application for copyright registration must be approved before the filing of an infringement claim. The plaintiff had applied for registration, but had not received an approved registration by the time it filed suit.
The Copyright Act states that "no 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." 17 U.S.C. § 411(a). The plaintiff argued that registration is effective on the date the Copyright Office receives all application materials while the defendant claimed that the plaintiff cannot sue until it has received a registration certificate.
The district court noted that the circuits are split on the issue of whether registration needs to be approved (i.e., a certificate needs to issue) prior to filing a copyright suit. The Tenth Circuit requires approval of the copyright application before the filing of an infringement claim. However, the Fifth and Eighth Circuits have held that a plaintiff need only send the application, deposit, and fee to the Copyright Office to file an infringement claim. The Seventh Circuit had previously stated that an application for registration must be filed before the copyright can be sued upon, basing this conclusion on the fact that once the Copyright Office approves an application, it retroactively lists as the effective date of the registration the date on which it received all application materials from the applicant.
The district court adopted the reasoning of the Fifth and Eighth Circuits and held that the plaintiff's registration was effective for purposes of initiating an infringement suit as of the date the plaintiff filed its application with the Copyright Office. In reaching this holding, the district court focused on issues of fairness, noting that while the plaintiff was waiting for the Copyright Office to act, the plaintiff allegedly was suffering harm as a result of the defendant’s infringement.