SCOTUS has finally resolved the copyright registration debate but in doing so has emphasized a statute of limitations issue of which we should all be aware. This post follows up on my colleague’s prior posts (and here) regarding when a copyright holder can properly file a copyright infringement lawsuit.

Pursuant to 17 U.S.C. § 411(a), “no civil action for infringement of the copyright in any United States work shall be instituted until…. registration of the copyright claim has been made in accordance with this title.” As previously noted, some circuits have adopted a “registration approach,” which interprets the statute to mean a plaintiff must have a registration of their copyright before they can bring suit. Other circuits have adopted the “application approach,” holding that simply applying for and pursuing a copyright registration is all that is required to maintain a suit for infringement.

This circuit split was recently resolved by the Supreme Court, which adopted the registration approach. “[R]egistration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” However, because an author gains its exclusive copyright rights immediately upon the work’s creation, SCOTUS clarified that “[u]pon registration of the copyright… a copyright owner can recover for infringement that occurred both before and after registration.” Notably, any recovery is still also dependent upon other factors such as when publication occurred, fair use, etc.

The Court acknowledged the time for registration has increased from one to two weeks in 1956 to several months today, due in large part to staffing and budgetary shortages. Because of the long wait to obtain registration, the petitioner, Fourth Estate, raised the concern that under the registration approach a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. The Court dismissed petitioner’s fear as “overstated” because the “average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application.”

This raises an interesting and rare, if not novel, issue. By requiring a potential claimant to apply for and obtain a registration on their copyright before filing suit, the statute of limitations is, in essence, substantially shortened. That is, a copyright owner cannot wait until the end of the statute of limitations period to act. If she intends to sue, she must file an application for registration months before the statute of limitations expires. Moreover, even if the applicant acts diligently and submits their application months in advance, registration is entirely dependent upon a third party, the Copyright Office. Accordingly, the statute of limitations could pass before registration occurs through no fault or want of diligence on the copyright owner’s part. Because further budgetary shortages are entirely possible, if not likely, this problem is only likely to grow.