On May 18, 2017, the Eleventh Circuit Court of Appeals dismissed a copyright infringement complaint and added further to a circuit split on when copyright “registration” occurs for purpose of filing a copyright infringement complaint. “Registration” of a copyright is required of US copyright owners prior to being able to file suit for copyright infringement (17 U.S.C. § 411(a)). However, there is no consensus on whether registration occurs when an owner files an application to register the copyright or occurs only when the Register of Copyrights actually issues a copyright registration.

In this case, Plaintiff Fourth Estate Benefit Corporation (“Fourth Estate”), a news organization, filed a complaint for copyright infringement against Wall-Street.com, also a news website. Wall-Street.com had obtained copyright licenses for a number of Fourth Estate’s articles, but failed to remove Fourth Estate’s articles upon cancelling its account with Fourth Estate as required by the license agreement. When Fourth Estate filed suit for copyright infringement, the complaint merely alleged that Fourth Estate had filed applications to obtain copyright registrations for the articles, not that any action had yet been taken on the applications by the US Copyright Office.

The Circuits are split on when “registration” occurs as required by statute. The Tenth Circuit requires that the copyright owner plead that the Register of Copyright has already acted on the application by approving or denying it before a copyright owner can file an infringement action. The Ninth, Fifth, and seemingly Eighth Circuits only require that a copyright owner plead they have filed for registration before filing suit (and not that the Register of Copyrights has already acted on the application). The Seventh Circuit has issued conflicting opinions, and the First and Second Circuits acknowledge the circuit split but have not taken a position either way.

The Eleventh Circuit stated that “[w]e need not decide this dispute about our precedents because the text of the Copyright Act makes clear that the registration approach we endorsed in [previous cases] is correct.” “[R]egistration can only occur after application and examination” (Section 410(b) of the Copyright Act).

The issue may soon be resolved by the US Supreme Court, since Fourth Estate has filed for a writ of certiorari. As of this posting, the Supreme Court has yet to take action on the petition. We will keep you advised of all further developments.