On March 4, 2019, Justice Ruth Bader Ginsburg, delivering a unanimous opinion of the Supreme Court of the United States, held that in order to commence a lawsuit for copyright infringement, 17 U. S. C. §411(a) generally requires the Copyright Office to have registered or denied registration of a copyright.  Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 586 U. S. ____ (2019), 2019 U.S. LEXIS 1730.

§411(a) states in pertinent part, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made . . .” However, where “registration has been refused, the applicant is entitled to institute a civil action for infringement if notice . . . is served on the Register of Copyrights . . . The Register may . . . become a party to the action . . .”  17 U. S. C. §411(a).

Petitioner Fourth Estate Public Benefit Corporation is a news organization producing online journalism.  Its license agreement with Wall-Street.com, LLC required it to remove from its website all content produced by Fourth Estate before canceling the agreement. Wall-Street canceled, but continued to display Fourth Estate articles. Fourth Estate sued for copyright infringement. The complaint alleged that Fourth Estate had filed applications to register the articles with the Register of Copyrights. Because the Register had not yet acted on Fourth Estate’s applications, the District Court dismissed the complaint, and the Eleventh Circuit affirmed.  Id. at *4-5.  The Supreme Court granted Fourth Estate’s petition for certiorari to resolve a split among U. S. Courts of Appeals on when registration occurs in accordance with §411(a).

“All parties agree that, outside of statutory exceptions not applicable here, §411(a) bars a copyright owner from suing for infringement until ‘registration . . . has been made.’ Fourth Estate and Wall-Street dispute, however, whether ‘registration . . . has been made’ under §411(a) when a copyright owner submits the application, materials, and fee required for registration, or only when the Copyright Office grants registration. Fourth Estate advances the former view—the ‘application approach’—while Wall-Street urges the latter reading—the ‘registration approach.’ The registration approach, we conclude, reflects the only satisfactory reading of §411(a)’s text. We therefore reject Fourth Estate’s application approach.

Id. at *7.

The Court’s opinion may be found at: https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf.