RPJ IP Partner Larry Brocchini Discusses Copyright “Registration/Application” Split

Copyright Alert: Supreme Court may clarify copyright “Registration/Application” split

A question often presented in my copyright practice is whether an infringement claim can be brought after a copyright applicant has filed its application, made its deposit and paid its fees, or whether the PTO must issue a registration.  The answer depends on where the suit will be brought.  In New York, although the Second Circuit Court of Appeals has not expressed a view, the federal district courts have generally required that a copyright registration be obtained before the suit can be filed.  Several other circuit courts agree.  However, several circuits have found that simply filing the application is sufficient.  The difference in approach has practical implications, as the Copyright Office is experiencing a substantial backlog.  Thus, copyright plaintiffs either must wait several months for a registration certificate to issue – thus allowing the infringement to continue – or pay additional charges to expedite processing, which can be an impediment for some plaintiffs, particularly those with many works.  The Supreme Court has recently requested input from the U.S. Solicitor General on the issue, signaling that it may weigh and clarify the issue.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you have a question regarding copyright matters, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.

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