The Switch by Nine Compels “A Stitch in Time” Approach to Copyright Filings

The Switch by Nine. Earlier this month, the U.S. Supreme Court clarified when a copyright owner can sue for infringement, settling the conflicting interpretations of the Copyright Act’s “registration” requirement, which we discussed in a prior newsletter.

“A Stitch in Time” approach. While the Supreme Court’s decision may be unsettling (especially to those in the circuits that had previously followed the application approach), the good news is that there are steps that copyright owners can take to minimize pendency of their copyright applications before the Copyright Office and, in turn, possible delay to filing a copyright infringement suit.

1. File a copyright application for a finished work before it is commercially released. Because the Copyright Office’s average processing time for most copyright applications is 7 months from the time of filing a complete application, filing an application immediately after it is finished, and before steps to commercialize have been taken, can improve the likelihood that the Copyright Office has approved or refused registration of the work before copying of the commercialized work can even occur. Additionally, filing an application electronically, instead of by mailing it in, can reduce average processing times by half.
2. File a “preregistration application.” This option is available for owners of certain types of works, namely, unpublished and to-be-commercially-distributed works of the type that have historically been infringed before publication, like motion pictures, books, and computer programs. The fee for a preregistration application is almost three times more than the $55 fee for a regular copyright application, however, its processing time is much faster. A preregistration application is generally processed within five business days and, like a registration, a preregistration allows a copyright owner to sue for copyright infringement of a preregistered work. However, because preregistration is not a substitute for actual registration, the copyright owner must eventually file a regular application to register the work with the Copyright Office within the prescribed period, to avoid dismissal of its infringement suit.
3. File a copyright application with a request for “special handling.” This option is available only in limited circumstances, like impending litigation, and requires payment of an $800 processing fee. Like the preregistration option, special handling shortens an application’s processing time significantly but, unlike the preregistration option, the Office issues an actual registration (instead of a preregistration) within five business days.

By keeping these options in mind, copyright owners can better position themselves to file suit when necessary with minimal delay, and avoid possibly missing the relatively short three-year-statute of limitations to bring a copyright infringement claim.

This article appeared in the March 2019 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.