Supreme Court Clarifies Copyright Law

On March 4, 2019, the Supreme Court clarified copyright law as it intersects with two aspects of copyright litigation. In Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC, the Supreme Court stated a bright-line rule that a copyright case cannot be filed in connection with an unregistered work; therefore, a lawsuit cannot be filed until after the Copyright Office reviews and registers the copyright. The Court did recognize that once registration had occurred, the copyright owner could sue for any statutorily permitted damages in its lawsuit.

Copyright owners should be aware that it is possible to seek expedited registration with the Copyright Office – at present, the fee is about $800 but it could change – and owners can seek preregistration protection for limited categories of works; a typical review and registration process takes between 9 and 12 months, while expedited registrations should take less than a week, but given this change by the Court, a backlog could develop. During the interim between filing for and receipt of registration, it may still be possible to send cease and desist letters to infringers and reach private resolutions.

In an unrelated decision, Rimini Street, Inc. v. Oracle USA, Inc., the Court confirmed that the Copyright Act does not authorize the award of litigation expenses or costs (not including attorneys’ fees) beyond the six categories specified in 28 U.S.C. 1821 and 1920, neither of which provide for the payment of modern trial expenses such as expert fees, e-discovery or jury consulting. Instead, litigants will have to seek those costs under different causes of action and not under the Copyright Act.

Heidi Tandy chairs Price Benowitz LLP’s Intellectual Property practice; she is a Board Certified Intellectual Property attorney, and focuses her practice on trademarks, copyrights, privacy policies and tech law issues including licenses, assignments and ADA compliance. She is teaching a Privacy Law class at Nova Southeastern University’s LLM program this Spring.