Copyright Law—Prerequisites to Filing Infringement Suit

Fourth Estate Public Benefit Corporation v., LLC, No. 17-571

Section 411(a) of the Copyright Act provides that a civil action for copyright infringement may not be brought “until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). In this case, the Supreme Court will decide whether a copyright owner may commence an infringement action after delivering the required application for registration, deposit, and fee to the Copyright Office, but before the Register of Copyrights has acted on the application. In the decision below, the Eleventh Circuit followed the Tenth Circuit, and split from the Fifth and Ninth Circuits, in dismissing the case because petitioner’s application had not been accepted or refused prior to commencement of the lawsuit. Upon invitation from the Supreme Court, the Solicitor General expressed the view that the Eleventh Circuit correctly decided the case but that the Court should nevertheless grant certiorari to resolve the circuit conflict.