SWIPLit

By Peter R. Montecuollo and David G. Barker

The Supreme Court of the United States granted certiorari in Fourth Estate Public Benefit v. Wall-Street.com to resolve a long-standing split among the United States Circuit Courts of Appeals concerning whether copyright owners must wait to file infringement suits until the United States Copyright Office has registered their works.  For instance, the Fifth and Ninth Circuits apply the “application approach,” which permits copyright owners to file infringement suits once upon applying for copyright registration.  Other circuits, including the Tenth and Eleventh Circuits, apply the “registration approach.”  In those circuits, failure to secure a copyright registration presents a jurisdictional bar to filing copyright infringement suits.  That is, the “registration approach” requires copyright owners to register their works with the Copyright Office before filing suit.

In Reed Elsevier, Inc. v. Muchnick (2010), the Supreme Court previously held that “§ 411(a) [of the Copyright Act] does not restrict a federal court’s subject-matter jurisdiction[.]”  However, the Court declined “to address whether § 411(a)’s registration requirement is a mandatory precondition to suit[.]”  Since then, the Circuit Courts have remained split between the “application” and “registration” approaches, leaving copyright owners with different rights depending on where they file suit.  The Supreme Court now appears poised to weigh in on the issue and may set a uniform standard for copyright infringement actions.