The U.S. Supreme Court agreed last week to hear a major copyright case, Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC. When the Court rules on this case in its next term, it will resolve a long-standing split between federal circuit courts on the question of whether Section 411(a) of the Copyright Act allows lawsuits to be initiated while a copyright application is pending before the Copyright Office, as opposed to after a registration certificate has been issued. The distinction is important because it can take the Copyright Office a year or more to issue a registration certificate. This means that in some districts, a creator may be forced to wait for up to a year to bring suit, watching as the infringement continues, until they finally receive a copyright registration certificate—either that or pay an expedited processing fee of $850.

The language of the statute is unclear as to the timing of when a lawsuit can be brought, stipulating only that “no civil action for infringement…shall be instituted until pre-registration or registration of the copyright claim has been made,” which two federal circuits—the Fifth and the Ninth Circuits—have interpreted as requiring a filing of the claim with the Copyright Office by the claimant. This interpretation, known as the “application approach,” stands in contrast to the “registration approach” of the Second and Tenth Circuits, which requires the Register of Copyrights to have acted on the application for registration by approving or denying it. The case before the Supreme Court comes from the Eleventh Circuit, which deepened the split by adopting the Tenth Circuit’s registration approach.

Splits between federal circuits create parallel legal regimes and allocate rights differently between jurisdictions, creating disparity in how federal law is applied. As a result, the Supreme Court is more likely to accept such cases. For example, in this case, copyright owners bringing infringement lawsuits in jurisdictions following the “registration approach” must wait until their registration application has been approved (or pay the expedited processing fee), while those bringing suit in jurisdictions following the “application approach” can do so immediately after submitting their registration application, deposit, and fees.

The Authors Guild anticipates filing or joining an amicus brief supporting the “application approach.” We will continue to watch the developments in this case and provide you with regular updates.