US Supreme Court settles long standing “circuit split” on copyright law

In Fourth Estate Public Benefit Corp. v. (586 US ___ (2019)), the US Supreme Court unanimously required copyright holders to await issuance of a copyright registration before initiating copyright litigation via the federal court system. The decision was notable because until the opinion, certain federal circuits found that approval of the application for registration by the Copyright Office was the threshold, known as the “registration approach.” On the other hand, some federal circuit courts, including the Ninth and Fifth Circuits, found that registration was effective upon the filing of the registration application including the associated deposit and fee (the “application approach”).

Fourth Estate drafts and licenses original news articles for client websites while retaining copyright in the articles themselves. is a news website that licensed news stories from Fourth Estate. The two parties maintained a services agreement for news articles which required to remove all articles provided by Fourth Estate in the event the agreement was terminated. After the agreement was at one point terminated, Fourth Estate required that remove their content from its website. After the content was not removed, Fourth Estate initiated a claim for copyright infringement against in the eleventh circuit. Writing for the court, Justice Ginsburg found that “Registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.”

This change is insubstantial, given that there are multiple avenues for an applicant to seek an expedited registration. For $800.00, works can be registered in a matter of days and not months. As a separate option, the Copyright Office maintains the ability to “pre-register” certain works that may be inclined to be infringed on by others. So, while the split was finally settled, the consequences of settling the split were fairly minor. At least copyright holders around the US can look forward to a consistent set of rules rather than a geographically based patchwork of laws that can affect your interests based on your physical location.

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