Copyright Case

Fourth Estate v.

Although copyright protection for US works is automatic, registering a copyright provides several benefits to copyright owners, including the ability to file a lawsuit for infringement. However, courts have split regarding 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. The difference may be significant, given that it currently takes an average of six months for the Copyright Office to process applications.

Fourth Estate Public Benefit Corporation, an online news producer, licensed some of its articles to, a news website. The license agreement required to remove any Fourth Estate produced articles once the license expired, but declined to do so. Fourth Estate brought a copyright infringement claim against, but Wall-Street moved to dismiss the claims on the grounds that Fourth Estate could not sue until after the Copyright Office acted on its copyright registration application. The United States District Court for the Southern District of Florida granted’s motion to dismiss, and the United States Court of Appeals for the Eleventh Circuit affirmed. In October 2017, Fourth Estate filed a Petition for Writ of Certiorari with the Supreme Court of the United States. Cert was granted and the Court heard oral arguments January 8, 2019.

The Supreme Court affirmed, holding that registration occurs, and a copyright claimant may commence an infringement suit, only after the Copyright Office registers a copyright or refuses registration.

Procedural History

– Supreme Court decision (March 4, 2019)
– Supreme Court Oral Arguments Transcript (January 8, 2019)
– Eleventh Circuit decision (May 18, 2017)

Status: Supreme Court affirmed. (March 4, 2019)

Party Filings:

– Fourth Estate Reply Brief (Nov. 13, 2018)
– Brief (Oct. 11, 2018)
– Fourth Estate Brief (Aug. 27, 2018)
– Fourth Estate Supplemental Brief (Cert) (June 5, 2018)
– Fourth Estate Reply Brief (Cert) (Dec. 13, 2017)
– Brief in Opposition (Cert) (Nov. 28, 2017)
– Petition for Writ of Certiorari (Cert) (Oct. 13, 2017)

Amicus Briefs

In Support of (Certificate Approach)

– United States (Cert) (May 16, 2018)
– U.S. Government (Oct. 18, 2018)
– Public Knowledge and R Street (Oct. 18, 2018)
– Washington Legal Foundation (Oct. 18, 2018)
– “Authors and Educators” (Peter Jaszi) (Oct. 18, 2018)

In Support of Fourth Estate Public Benefit Corporation (Application Approach)

– Copyright Alliance (Sept. 4, 2018)
– American Bar Association (Sept. 4, 2018)
– NMPA, RIAA, ASCAP, BMI, NSAI, and SONA (Sept. 4, 2018)
– Authors Guild and other Authors’ Rights Organizations (Sept. 4, 2018)
– International Trademark Association (Sept. 4, 2018)

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