Title 17 U. S. C. §411(a) states that “no civil action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made in accordance with this title.” In affirming the Eleventh Circuit’s decision, the Supreme Court rejected the “application approach” previously applied by other lower courts, including the Fifth and Ninth Circuits, which held that a registration “has been made” upon submission of the application to the Copyright Office. The rationale for this “application approach” had been that once the Copyright Office processes the claimant’s application, the effective date of the Copyright Office’s determination of whether to grant the registration or not is the date on which the application was filed, so lawsuits should be allowed from the date that the application was secured. Additionally, because the claimant has no idea how quickly the Copyright Office will process its application, and the only prerequisite to registration for works that are copyrightable is a completed application, an application date is sufficient.
The Supreme Court, though, agreed with the Tenth and Eleventh Circuits in holding that the registration “has been made” when the Copyright Office grants the registration, finding that a contrary reading of the statute would render the exceptions to the rule against filing before registration superfluous.
So, what is the takeaway from this decision? In order to have protect themselves and their works, claimants need to register their works quickly! To begin a lawsuit—and therefore to generally establish the timeline for computation of actual damages and disgorgeable profits—a plaintiff in a copyright suit must have a duly issued registration. Although the Supreme Court held that the registration requirement does not foreclose a claimant from recovering damages for infringements occurring both before and after registration, the effective “window” of recoverable damages may be shifted as a result of the time it takes to process an application for the copyright registration. The difference between a standard application and an expedited application typically amounts to both many months of wait time and thousands of dollars in fees. If a claimant doesn’t have the luxury of either waiting around to enforce its rights or to spend a great deal to expedite its application, the Supreme Court’s registration requirement will assuredly affect when the claimant can file suit, and the ultimate amount of damages recoverable in that suit. Moving forward, copyright claimants must be even more diligent in properly and speedily registering their works in order to garner the highest degree of protection in the courts.