Supreme Court Legal Update: Copyright Infringement Recovery

On March 4, 2019, the Supreme Court handed down a unanimous decision impacting the way that copyright ownership is enforced under the law. In this article, we will take a look at how this case changes the way we look at copyright infringement and enforcement.

Setting the Scene

This is a case between a company that writes content and a company that hosts that content on its website. Fourth Estate Public Benefit Corporation writes online articles and licenses them to news outlets. is an online news platform that used to have a license agreement with Fourth Estate before it expired. Under the agreement, was required to remove all licensed content from its site before the license agreement lapsed. However, it failed to do so. Fourth Estate filed to register its content and then immediately filed suit for copyright infringement under the Copyright Act.

Copyright, Reviewed

Before we go any further with the story, let’s do a little review of basic copyright law. Copyright law, as we have discussed before, is the set of intellectual property rights surrounding original works of authorship. Things like books, articles, audio recordings, videos, and visual works can all be copyrighted. Under the common law, the author of a work actually gains exclusive rights to the copyright of that work as soon as it is created. However, in order to enforce that copyright ownership in court, the owner must first register the copyright with the U.S. Copyright Office.

In the text of the Copyright Act, the prerequisite for filing a civil action against a copyright infringer is that “registration has been made.” Herein lies the issue facing the Supreme Court in the Fourth Estate v. matter.

The Question Facing the Court

As mentioned above, when failed to remove copyrighted material from its website once its license agreement lapsed, Fourth Estate did two things: 1) filed an application for registration of the copyrighted material and 2) filed a civil suit against for infringing upon its exclusive right to its content. said wait a minute, the Copyright Act doesn’t say you just have to file an application to earn the right to enforce a copyright in court, it says that registration has to be “made.” Under’s argument, copyright enforcement rights don’t extend until the Copyright Office actually makes a decision on a copyright application. Fourth Estate, who wanted to be able to enforce its rights as soon as possible, said of course filing the application for registration is sufficient, especially because it takes on average six months to receive a response from the Copyright Office.

So, the question was put to various courts on its way up to the Supreme Court: when suing to enforce a copyright, can the owner sue after submitting the application or does it have to wait until after the application has been processed? Each theory of the case had merit: Fourth Estate’s “application approach” and’s “registration approach.”

A Unanimous Decision

In January 2019, the Supreme Court heard oral arguments from both sides. In March, it issued its unanimous decision in an opinion delivered by Justice Ginsberg. Registration occurs, and a copyright owner can initiate an infringement suit, when the Copyright Office registers the copyright. This means that, despite the fact that it may take several months to receive a determination from the Copyright Office, civil suits cannot commence until after the Office has registered the copyright. wins. But, the Court offers a caveat: a copyright owner can recover for infringement that occurred both before and after registration.

Let an Experienced Professional Help You Protect Your Copyrights 

The law is ever-changing, and one of the benefits of working with an experienced legal professional is that you don’t have to keep up with these changes. We do it for you. If you are an author of original content, whether you are a business owner, an artist, or a social media influencer, you are the exclusive owner of the content you create. However, enforcing that ownership can be far more complex. Click here to schedule a call with an experienced copyright attorney.