Tuesday, 23 May 2017 19:35

The 11th Circuit Reaffirms its Position that a Copyright Registration is a Precondition to Filing an Infringement Action

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The 11th Circuit in Fourth Estate Public Benefit v. Wall-Street.com, LLC, No. 16-13726 (11th Cir. 2017) has reaffirmed its position that a copyright owner cannot file a copyright infringement lawsuit unless the Register of Copyrights registers the copyright in the works at issue. 

Although registration is not required to own a copyright, it is required for a copyright owner to enforce its rights in court in a copyright infringement action. The Copyright Act provides that “registration” of a copyright is a precondition to filing suit for copyright infringement. 17 U.S.C. § 411(a).

In Fourth Estate, the plaintiff filed an application to register its works, although the Register of Copyrights did not register the works. The Court held that “registration” occurs when the Register of Copyrights registers the copyright and not merely when an owner files an application to register the copyright. Therefore, the Court affirmed the district court’s dismissal of the plaintiff’s complaint on the basis that it failed to plead compliance with the registration requirement of 17 U.S.C. § 411(a). 

This decision represents a split in authority among the circuits as some circuits such as the Ninth and Fifth Circuits follow the “application approach”, which requires a copyright owner to file the deposit, application, and fee required for registration before filing a suit for infringement.

 

Read 433 times Last modified on Tuesday, 23 May 2017 20:25
Meredith Frank Mendez

Ms. Mendez earned her bachelor’s degree from the University of Michigan, with honors, and her law degree from the University of Florida, with honors. She is Board Certified as an Expert in Intellectual Property Law and concentrates her practice in Intellectual Property Litigation, Trademark Prosecution, Copyright Law and Entertainment Law. She is a member of the Florida Bar and is licensed to practice in the Southern, Middle and Northern Districts of Florida. Ms. Mendez is also Co-Chair of the Attorney's Network of the Greater Miami Jewish Federation and a member of the International Trademark Association, the Entertainment, Arts and Sports Law Section of the Florida Bar, and LegalArt.