When Is Your Copyright Registered?

The US Copyright Office stated Monday at the New York State Bar Association gathering at Fordham Law School that they have a significant backlog of pending copyright registrations. Although Congress has given the US Copyright Office over 50 new staff members, paper registrations can take up to two years. Electronic registrations can take up to eight months at worse.

With this in mind, should artists and art law practitioners be concerned?

The timeliness issue could be a factor if an artist sues for copyright infringment in a particular jurisdiction. Glenn G. Lammi, at Forbes.com, states the issue: “The matter at stake: when can a plaintiff [artist] assert copyright infringement claims in court: the date they submit the application, or the date the U.S. Copyright Office formally grants registration?” Well, it depends.

IP Law Alert has a great summary of the situation:

Circuit courts are divided on this issue. For example, the Fifth Circuit held in Positive Black Talk v. Cash Money Records that simply filing an application is adequate, as long as all required elements are deposited with the Copyright Office. This view has been called the “Application Approach.” Conversely, the Tenth Circuit in La Resolana Architects, PA v. Clay Realtors Angel Fire held that simply filing all the required elements of an application is not enough to satisfy §411(a), and that either a rejection or an acceptance must be received by applicant in order for a party to bring an infringement claim. This has been called the “Registration Approach.”

In California, falling under the Ninth Circuit, it’s when the application is submitted. What about New York?

While the Second Circuit has yet to address the issue, three recent district court cases in the Southern District of New York have applied the Registration Approach.

The US Copyright office also addressed this concern this past Monday, stating that they are, for a limited time, waiving the $750 expedited fee for copyright registrations if the registrant met certain criteria. Check with the Copyright Office for this.

Tags: 411, copyright litigation, copyright registrations, usc 411, usc 411(a)