Copyright law is an interesting subsection of the legal field. Fun fact: the Founding Fathers cared more about protecting copyrights than any nebulous free speech rights. The right to copyright is established in the original U.S. Constitution enacted in September 1787. The Bill of Rights did not exist until 1789.

Additionally, one of the really cool quirks about copyrights is how they are created. Copyright exists “the moment it is created and fixed in a tangible form.” Alas, this cool quirk appears to only be true in form, but not in substance. For the United States Supreme Court recently ruled that before you can enforce a copyright, you must first go through the complete administrative process of registering that copyright with the Copyright Office.

While the Court recognized that it is not an ideal situation, it effectively threw its hands up and said “the law is the law” without really addressing the downstream effects. I would now like to take the time to do what the Court would not, and address the direct effects of this new “registration is required” copyright world.

Fourth Estate SCOTUS rulings

On March 4, 2019, the Supreme Court held in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,[1] that the Copyright Act requires that a copyright owner first acquire a registration before it can file a lawsuit against a potential infringer. Specifically, it addressed the text of Section 411(a) of the Copyright Act, which states that “no civil action for infringement of the copyright … shall be instituted until preregistration or registration of the copyright claim has been made…” For many years, however, certain courts (including the Fifth Circuit, which includes Texas) have allowed copyright litigants to file a lawsuit if only the application for registration has been filed. Litigation then proceeded while the application was pending. It is more efficient but it was not consistently applied by all courts.

Because of this uncertainty, the Court took the Fourth Estate case and has now resolved all doubt in favor of requiring registration or preregistration in all instances.

This ruling effectively negates the long-held policy that copyright exists at the moment of creation. Sure, you can claim copyright in that precise moment, but the law now says you cannot do anything about it until you pay a fee and wait an interminable amount of time to get a certificate of registration. Justice Ginsburg specifically noted that “Congress resisted efforts” to remove the registration requirements when it enacted the 1976 revisions to the Copyright Act and that the registration requirement should therefore be the law. This amounts to punting, however. Statutory language has not previously stopped the Court from interjecting and opining on what the law should be versus what the words on the page actually say.

The Court held did hold that if “infringement occurs before a copyright owner applies for a registration, that owner may eventually recover damages for the past infringement, as well as the infringer’s profits.” This, however, overlooks the administrative delays and obstacles that are now placed before a copyright holder. The Court itself admitted that “the average processing time for registration applications is currently seven months” – which is an extremely long period of time when the value of some copyrights can only be exploited over a period of days or weeks.

Actual effects of SCOTUS’ registration requirements

The Court dedicated a lot of time to Section 411(a)’s “preregistration” exceptions. This exception, however, only applies to a narrow grouping of copyrights. It also applies only to copyright owners that have the resources to plan ahead and file for “preregistration” to begin with. Who are the usual suspects here? Movie studios. Record companies. Essentially large corporate entities that lobbied for these specific exceptions. Meanwhile, there are numerous artists, writers, entertainers, musicians, and photographers who do not have lawyers on retainer but who also rely heavily on copyright to protect their own business interests. The impact of this ruling on these types of individuals will be substantial.

Take for example a photographer. While the fee to register a single photo copyright (one work) is $35 and a group registration for photographs can be as low $55 per application, a photographer would likely have to file multiple, separate applications for “group” registrations for every individual photoshoot. This photographer would also have to anticipate potential infringement and file applications for copyright registration right after taking the photos in question.

Then the photographer would have to wait on average seven (7) months to acquire the registration(s). Yes, if infringement did occur in that window of time, the law allows the photographer to recover damages and fees from infringement, but filing a lawsuit and reaching a verdict of copyright infringement could take an additional two years, with attorneys’ fees piling up at every step of the way. This would not even factor in the infringer’s right to appeal. Nor does it factor in what the statutory damages might be or the difficulty in proving a defendant’s profits resulting from infringement (as this usually requires retaining expensive expert witnesses). Oh, and if you want to expedite the registration process? That will be $850 for special handling, thank you very much.

What if the photographer decides that the copyright claim is such a slam dunk that an attorney is not needed? Well, there are still substantial costs involved. Copyright infringement is a federal question that is exclusively the jurisdiction of federal courts. Any lawsuit would have to be filed in federal court. To file a lawsuit in the Southern District of Texas is $400. Yes, there are waivers for indigent clients and such, but these are not automatically granted. And, as mentioned, you still have to prove a defendant’s profits if statutory damages are insufficient. Statutory damages can be as low as $200 per work if the court determines that the infringement was not willful. The copyright plaintiff would still likely have to pay out of pocket for depositions, discovery requests, court reporter records, and take time away from a day job.

And the possibility for injunctive relief is not available until that registration issues. The standard for a preliminary injunction can be a high burden. Plus, a subsequent permanent injunction could not be granted to the copyright owner until litigation is completed.

Fourth Estate provides procedural advantages to infringers

The law is supposed to protect the copyright holder. In theory. Unfortunately, this “registration is required” law functionally does the opposite.

The Fourth Estate ruling practically incentivizes a would-be infringer. The odds are stacked against this hypothetical photographer. Just threatening to enforce a copyright against an infringer requires a copyright owner to first run through a gauntlet of administrative obstacles before ever forcing the infringer to appear in a courtroom before a jury. The copyright owner must now take on all the burdens and assume all the risk. Most copyright owners simply cannot afford the process. Many others cannot wait three years before legal resolution either.

Creating art is usually not a massively profitable venture, unless you are a large movie studio, record company, or television network. Most artists are not afforded the luxury of being protected by these corporate interests (and those that do have to constantly guard against being exploited and/or losing their copyrights through assignment). Copyright law should work to protect these artists, not create additional burdens upon them.

The Copyright Office has published a FAQ that hilariously states that you do not have to register your copyright to be “protected.” It is a technically true statement, but to actually enforce a copyright now requires a series of administrative steps that may prove to be too expensive or too time consuming for the typical struggling artist to bother with. Registration is functionally a requirement to “protect” any copyright. Providing yet another avenue for those with resources and leverage to exploit the artists of the world.

The Fourth Estate ruling is, on its face, technically correct. I will not try to assert otherwise. But that does not mean it is right or just or the way things should be. Copyright law should exist to incentivize artists. This ruling does nothing but take away some of those incentives.

[1] No. 17-571, __ U.S. __, 139 S. Ct. 881, 203 L. Ed. 2d 147 (2019).