Why Register a Copyright? by Kelley Way
Let’s welcome back monthly columnist Kelley Way as she shares with us “Why Register a Copyright?” Enjoy!
And now for a bit of necessary legalese: Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.
I’ve had several people reach out to me over the last month regarding a recent Supreme Court case, Fourth Estate Public Benefit Corporation v. Wall-Street.com. The ruling made them worry about their ability to protect their copyrights. For those who aren’t aware of the case, here are the details:
Fourth Estate Public Benefit Corporation had a deal going with Wall-Street.com, where they provided content for the company to publish. Things fell through, and Fourth Estate demanded that Wall-Street.com pull their content off its site. When Wall-Street.com didn’t immediately comply, Fourth Estate sued it for copyright infringement.
So far it sounds like a fairly typical infringement case. But here’s the sticky point: Fourth Estate did not register the copyrights to their content until just before initiating the lawsuit. Under the rules set down in the Copyright Act, you must register your copyright before you can set foot in court. The court dismissed the case, because while the application had been submitted, a Certificate of Registration had not yet issued. Fourth Estate appealed, and then appealed again to the Supreme Court.
The Supreme Court sided with Wall-Street.com and the lower courts. A copyright owner cannot initiate a lawsuit without a Certificate of Registration from the Copyright Office. A pending application is not enough; the Copyright Office must have actually registered the copyright.
So what does this mean for copyright owners?
While I understand the concern, I have to point out that the Supreme Court did not create a new rule. This requirement has been in place since the Copyright Act took effect in 1978.
The Supreme Court just confirmed that this is what the law says, because some of the lower courts were allowing a lawsuit to go forward while the application was still pending. Nothing has actually changed, beyond making sure the lower courts stick to what the law actually says.
This ruling also does not affect the validity of a copyright. Under the current Copyright Act, creators have a copyright as soon as their work is completed in a format that others can interact with (written down, typed up, recorded, etc.).
Registration serves as a “rubber stamp,” showing that the government has acknowledged that you have a copyright to the registered work. While there are benefits to registering your copyright (such as, say, being able to sue an infringer), it is not required in order to have a copyright.
With that out of the way, what should copyright owners do going forward?
My advice is the same as it was before this case came out – copyright owners should register their copyrights with the Copyright Office as soon after publication as possible. It eliminates that hurdle to get into a courtroom, and there are extra fines that can be imposed if the infringement occurred after the copyright was registered.
The registration process is also inexpensive and straightforward; the Copyright Office even has tutorials on its website to walk you through it.
If you have further questions, or would like help registering your copyright, you are welcome to email me at [email protected].
ABOUT THE AUTHOR
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. More information at kawaylaw.com.