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On January 8, 2019, the Supreme Court heard argument in Fourth Estate Public Benefit Corp. v., a case considering whether a copyright owner may sue for infringement in federal court after merely applying for registration of the copyright, or whether the Registrar of Copyrights must first act on the application.

Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street was required to remove all Fourth Estate content from its website before cancelling its account. When Wall-Street cancelled its account but continued to display Fourth Estate articles, Fourth Estate filed suit for copyright infringement against Wall-Street and its owner in federal district court. 

The defendants moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue.  Here, Fourth Estate alleged that it had filed applications with the Registrar, but did not indicate whether any application had been acted upon.  The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice.  On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Noting a circuit split on whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach), the Eleventh Circuit adhered to the registration approach.

The Supreme Court granted argument to address the circuit split regarding whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeals for the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have held.

To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.