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When Exactly Is a Copyright Registered?

A recent court case from California is highlighting a nationwide split in the way that courts deal with the issue of copyright registration. Copyright is an interesting area of the law because there is no need to file a registration to gain a copyright. A copyright arises in a work as soon as it is produced. However, registration is important because it provides a variety of benefits. Chief among those benefits for the purposes of the dispute are that a copyright registration is required to sue someone for infringement and that the registration’s timing can determine the amount of damages that an infringer must pay. Courts across the country are currently in disagreement over when in the registration process a copyright actually counts as registered.

The Dispute in the Courts

The dispute in the courts arises because there are four distinct phases of copyright registration. First, the person who created the work files an application for registration. Second, the Copyright Office determines whether the work is copyrightable. Third, the Office actually makes about whether to issue a copyright. And Fourth, the Office finally issues the official registration certificate for the work. Courts are currently disagreeing over at which point in the process “registration” occurs for the purposes of gaining registration’s benefits, and the copyright statute itself provides no clarity. It’s definition of registration is merely the circular statement that registration is “a registration of a claim….”

Consequently, different federal courts are taking different positions on the issue. Many courts, including the new California case, are of the opinion that registration occurs after the first phase in the registration process, once the applicant has submitted their application. This makes some sense in the context of copyright’s greater principles about ease of use. The system was designed for artists and copyright protection arises automatically, so it could be argued that it does not then make sense to force someone to complete a full rigorous application process before bringing a suit.

Other courts see it differently, including the 11th Circuit, which is the federal court covering Florida. In those courts, the third step of actually receiving a registration determination from the Copyright Office must occur for a copyright to qualify as registered. Still other courts actually wait until the fourth step, the official issuance of the certificate. These positions also have some merit since it is difficult to argue that a copyright should qualify as registered before the office actually decides whether it merits registration.

Why This Matters

While this seems like a highly technical dispute, it actually has important practical impacts on the ground. Plaintiffs cannot access the federal court system to enforce their copyrights until they have a registration, and the time gaps between application and the issuance of a certificate can be months. Additionally, if a person fails to register their copyright within three months of publication, then they can lose access to certain damages that they would otherwise qualify for.

Copyright law can be full of these sorts of technical but important issues. If you have questions about your rights in a copyright dispute, contact a Florida copyright attorney at Pike & Lustig, LLP today.

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