Copyright Application or Registration: Which Is Needed to Bring Suit?

The federal courts are split on a fundamental aspect of copyright law -- whether copyright holders are required, under 17 U.S.C. § 411, to have registrations granted or just applications filed, before they can bring suit. This has a significant impact on copyright holders waiting for the Copyright Office to act before they can enforce their rights. In March, 2010 in Reed Elsevier, Inc. v. Muchnick, the U.S. Supreme Court clarified one aspect of this issue, but did not resolve the real dispute. In Reed Elsevier, the Supreme Court held that § 411(a) does not restrict a federal court’s subject-matter jurisdiction over infringement claims involving unregistered works. The Court stressed, however, that its decision did not address whether § 411(a)’s registration requirement is "a mandatory precondition to suit."

Thus, the Court left to the Circuit Courts to decide whether the registration requirement of §411(a) is satisfied by filing an application, or whether the Copyright Office must either grant or reject the application before a claim for infringement may be brought. Not surprisingly Circuit Courts are divided on this issue. For example, the Fifth Circuit held in Positive Black Talk v. Cash Money Records that simply filing an application is adequate, as long as all required elements are deposited with the Copyright Office. This view has been called the "Application Approach." Conversely, the Tenth Circuit in La Resolana Architects, PA v. Clay Realtors Angel Fire held that simply filing all the required elements of an application is not enough to satisfy § 411(a), and that either a rejection or an acceptance must be received by the applicant for a party to bring an infringement claim. This has been called the "Registration Approach." While the Second Circuit has yet to address the issue, three recent district court cases in the Southern District of New York have applied the Registration Approach.

To date, neither the Fourth Circuit nor the Virginia federal district courts have addressed this issue since the Reed Elsevier decision.