Must a creator have a physical Certificate of Registration to bring a lawsuit in federal court?
Under the 1976 Copyright Act, an action for infringement may be instituted if the U.S. Copyright Office has issued a certificate of registration or issued a refusal of a registration. In order to proceed with a lawsuit, it may be necessary to submit an actual copy of the certificate of registration. Upon request, the Copyright Office will provide a certified copy of a certificate of registration or a refusal letter to any member of the public who pays the appropriate fee for this service. For information concerning this service, see Compendium (Third), Chapter 2400, § 2408.
As a prerequisite to instituting an infringement action on the basis of a refusal of registration by the Office, notice must be served on the Register of Copyrights together with a copy of the complaint. See, 17 U.S.C. § 411(a). The Copyright Act provides the Register of Copyrights with the opportunity to intervene as a party in such actions as a statutory right with respect to the issue of copyrightability.
In 2019 the Supreme Court addressed whether the Copyright Act allows a copyright owner to file a lawsuit as soon as she has submitted all the materials required for a registration application, or whether she can only file suit after the Copyright Office has acted on the application by either issuing a certificate or rejecting the application (Fourth Estate v. Wall-Street.com).
The Court decided that a copyright owner may commence an infringement suit only after the Copyright Office registers a copyright or refuses registration. This decision has a significant impact on creators as the Copyright Office’s online registration process can take a long time.
This long processing time impacts creators as, if they do not already have a Copyright Office decision for their work’s registration, it eliminates their ability to leverage and immediately initiate legal action once copyright infringement is discovered.
Further, this decision inequitably impacts small creators as, if they wish to submit a copyright registration and quickly initiate suit, each expedited registration costs $800, excluding the $550 expedited recordation fee and any appeals fees that may arise.
For further information, please see COMPENDIUM (THIRD) Compendium (Third) §§ 623 and 625.