An entrenched circuit split had developed on an issue of statutory interpretation presented at the outset of virtually every copyright case. Section 411(a) of the Copyright Act provides that no infringement suit may be filed unless registration “has been made.” Must the Copyright Office act on an application for registration before suit may be filed, or is filing the application enough?
Multiple circuits, in line with the view of leading treatise authors (Goldstein; Nimmer), had held that simply filing the application is enough. We were retained after a leading Supreme Court expert filed a petition for review advancing this so-called “application” approach.
Because the petition appeared virtually certain to be granted, our petition-stage goal was to stake out a strong merits position: that the only permissible reading of the statutory language of the Copyright Act is that the Copyright Office must act before suit is filed. When the Court called for the views of the Solicitor General, the government fully endorsed the view articulated in our brief. The Court granted the petition for review.
At the merits stage, with the support of the government and multiple amici, we explained why the compelling policy arguments advanced by the petitioner should not overcome the plain meaning of the statutory text written by Congress. The case was argued by Peter K. Stris in January 2019.
In an opinion written by Justice Ginsburg (who, despite not being able to attend the argument herself, cited a portion of Mr. Stris’ argument from the transcript for a key point), the Supreme Court ruled 9-0 in our client’s favor. The decision vindicates not only the original text of the Copyright Act, but also Congress’ desire to promote early and extensive copyright registration.
Key Case Materials
Opinion (March 4, 2019)
Oral Argument Audio (January 8, 2019)
Reply Brief for Petitioner (November 13, 2018)
Our Brief for Respondents (October 11, 2018)
Brief for Petitioner (August 27, 2018)
Brief for the United States (May 16, 2018)
Our Brief in Opposition (November 28, 2017)
Petition for a Writ of Certiorari (October 13, 2017)
Supreme Court clarifies when copyright owners can sue for infringement (Reuters, March 4, 2019) (subscription required)
No Shortcut to Copyright Registration, High Court Rules (National Law Journal, March 4, 2019)
Supreme Court Clarifies Copyright Law: “Application” v. “Registration” Finally Resolved (National Law Review, March 4, 2019)