Photo Attorney

Mar 20, 2009

Supreme Court to Consider Copyright Registration Requirements

As reported in my January 25, 2007, blog, courts usually have required plaintiffs to have registered (or have attempted to register and the registration has been refused) the copyright to their work before they may file a copyright infringement action. Specifically, 17 USC Section 411(a)) states that:

[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

Recently, however, the U.S. Supreme Court granted a writ of certiorari in the case of Reed Elsevier, Inc. v. Muchnik, No. 08-103. The Court's review will be limited to the question of whether 17 U.S.C. Section 411(a) restricts the subject matter jurisdiction of the federal courts over copyright infringement actions.

As reported by Foley & Lardner, LLP, the case of Reed Elsevier: "involves the proposed settlement of a class-action copyright infringement suit brought mainly by freelance authors against publishers who republished the authors' works on the Internet. Although the named plaintiffs in the suit had obtained copyright registrations for their works, most of the other class members had not. After years of negotiation, the parties sought court approval for a settlement, which is necessary in a class-action suit. The district court approved the settlement, but the Court of Appeals for the Second Circuit vacated that decision, holding that the courts could not approve the settlement because they did not have subject matter jurisdiction over the claims of copyright owners who had not registered their works."

A petition for a writ of certiorari is granted "only for compelling reasons." One of the reasons the Court considers is when a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter. Such is the case here. The circuit courts have disagreed whether a copyright owner must have received the registration certificate (or attempted to, as referenced above) or have only filed for it before filing an infringement suit.

This decision may affect photographers directly. Since too few photographers register their photographs with the US Copyright Office in advance, they must wait until they receive their registration certificate to file suit after finding that their copyright has been infringed. Since the registration process can take months, some of the photographer's rights may be extinguished because the statute of limitations for copyright infringement claims is three years. Further, the cost for an expedited registration is an additional $685.

While we wait to see what the Supreme Court decides about this matter, it's best to not wait. Register your copyrights today!

Thanks to Kyle Zeringue for submitting this topic.