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Copyright Law Update: Your Copyright Must be Registered Before You can Sue

The US Supreme Court recently issued its opinion Fourth Estate Public Benefit Corp. v., No. 17-571 (US Supreme Court March 4, 2019). The Court reaffirmed the Copyright Act’s requirement that a copyright must be registered before the copyright owner can initiate a lawsuit to protect the copyright. Further, the Court held that the word “registration,” as used in the Copyright Act — 17 U.S.C. §411(a) — means action taken by the Register of Copyrights; not merely the act of completing the application for registration. Fourth Estate Public Benefit Corp. provides needed clarity to copyright law. If you need help with copyright registration or with any other legal needs with respect to intellectual property, an experienced San Diego corporate attorney can provide advice and assistance.

As we have discussed previously, copyrights are an important and valuable component of any business’s intellectual property. Copyrights are mostly governed by federal law, although there is a California copyright law, too. See Cal. Civ. Code §980. Under the Copyright Act of 1976, copyright protection attaches to “original works of authorship,” prominent among them, literary, musical, and dramatic works, “fixed in any tangible medium of expression.” 17 U. S. C. §102(a). Note that the California copyright law protects “… any original work of authorship that is not fixed in any tangible medium of expression …” (emphasis added).

An author of an “original work” obtains his or her copyright automatically and immediately upon completion of a “work.” But, certain other rights such as the right to sue to prevent infringement are not automatic and depend on the author obtaining registration from the Copyright Office. Section 501(b) of the Copyright Act specifically grants a copyright owner the right to institute a civil action for infringement of those exclusive rights protected under copyright law.

There is a limited exception to the rule that a copyright owner must register before starting an infringement lawsuit. There is a procedure for obtaining what is called a “preregistration.” This is of particular importance to us here in Southern California, a thriving community of artists, musicians, and filmmakers. Preregistration is used for just these types of artistic endeavors where a copyright owner is preparing to distribute a work that is vulnerable to predistribution infringement. Movies and songs and the like are vulnerable in this manner. See Copyright Act §408(f)(2). Even for preregistration, there must be some action by the Copyright Office before the copyright owner can sue. Moreover, full registration must still be finalized or the copyright owner risks having his or her case dismissed for failure to perfect the registration. There is a similar exception that protects a live broadcast where a lawsuit can be started before “registration . . . has been made.” See §411(c). But, here again, registration must be perfected within three months of the first broadcast or the case can be dismissed.

Contact San Diego Corporate Law Today

If you need legal advice and services related to registering copyrights or your company’s other intellectual property, call corporate attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard was named “best of the bar” four years running by the San Diego Business Journal. To schedule a consultation, contact us via email or call at (858) 483-9200. Like us on Facebook.

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Schedule a Consultation: 858.483.9200