By Brett Manchel

In March, 2019, the U.S. Supreme Court handed down not one, but two, copyright law decisions. We’ve now got clarity on two big issues: 1) you have to have a registered copyright before you can file a lawsuit for infringement; and 2) if you prevail in a copyright suit, you can only recover costs as defined in federal law.

The first question, about copyright registration (which I previously wrote about), has been looming for a while now: before SCOTUS’ ruling in Fourth Estate Public Benefit Corporation v., LLC, et al., it was not clear whether simply filing a copyright application was enough to comply with the federal law about filing copyright lawsuits. In some circuits a copyright holder needed the copyright office to register the copyright before initiating a lawsuit, and in other circuits, all the author needed to do was file the application. Now we know that, no matter what circuit you’re in, you need the copyright office to register your work before you’re able to sue someone for infringing on it.

The take-away here is to register your work early and often, and be sure not to sit on your rights. With this ruling, authors need to be extra mindful of the 3-year statute of limitations for bringing copyright infringement actions. If your work is not registered in time, you may forever lose out on your chance to sue for copyright infringement.

As for the second case, the Court addressed an ambiguity in the Copyright Act as it compares to other federal laws pertaining to collectable damages. The Court ultimately decided that the Copyright Act should be interpreted consistently with other federal law, and the costs that are recoverable by a prevailing party are limited to the court costs. So, for example, one could not recover the cost of an expert witness. Now we know!

If you have questions about whether your work is copyrightable, or how to register it, or if you’re worried someone is infringing your intellectual property, let’s schedule a time to talk.