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.
