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Timely Copyright Registration Essential after Supreme Court Ruling

Obtaining copyright registration is now confirmed as a prerequisite to filing most copyright infringement lawsuits. Prior to the March 4, 2019 Supreme Court decision, a strategy allowed by some courts would be to file a registration application with the U.S. Copyright Office before suing for infringement, presuming that the Copyright Office would issue a registration before the trial court made its final decision. That option is no longer available. Now, copyright owners must be more diligent and timely, because they will need time for the Copyright Office to make a final determination on registerability. An owner should file to register a creative work soon after it is published, so that the owner is ready to bring suit against an infringer as early as possible. The Copyright Office still allows for expedited registration for an $800 fee, which is an alternative for filing at the last minute, although the usual expedited five-day wait may get longer as more people need to file suit who have not timely registered months earlier. The ruling does not place the same requirement on works created that are “especially susceptible to prepublication infringement,” such as musical compositions, movies and live broadcasts. Another ironic nuance is that suit is also proper after the Copyright Office officially rejects an application; the plaintiff will then have to argue that the Copyright Office’s final determination was wrong. Justice Ginsburg wrote the unanimous opinion: Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 139 S.Ct. ____, 2019 U.S. LEXIS 1730.