One year ago, the U.S. Supreme Court held in Fourth Estate Public Benefit Corp. v. Wall-Street.com that an approved or rejected application for registration is a nationwide prerequisite for initiating a copyright infringement suit under § 411(a) of the Copyright Act, serving as a helpful reminder of the importance of prompt and timely registration with the U.S. Copyright Office.

Copyright registration is relatively straightforward. Standard registration requires (1) completing an application, (2) paying an application fee, and (3) depositing material to identify the work with the Copyright Office. Note that the effective date of the registration is the date the Copyright Office receives all completed materials.

Copyright registration, although not necessary for copyright ownership, offers many benefits, including:

• Evidence of validity. A registered copyright, if registered within five years of publication, establishes a prima facie case of validity for both the copyright itself and the facts stated in the registration certificate.
• Statutory damages. The question of damages in a copyright infringement lawsuit is a fact-specific inquiry that requires a showing of actual damages, such as lost sales and opportunities, and the infringer’s profits attributable to the infringement, each to a high degree of certainty. A valid copyright registration made either (1) prior to infringement, or (2) within three months of publication of the work enables copyright owners to bypass this inquiry and, if they wish, seek statutory damages between $750 and $30,000 per infringement, and up to $150,000 in the case of willful infringement. Moreover, a court may also award filing fees and reasonable attorneys’ fees in favor of a copyright owner.

Additionally, a registered copyright will provide:

• A public record of ownership. While copyright automatically vests in the author of a creative work under the Copyright Act, a copyright registration provides evidence of ownership and can cut off certain defenses of so-called innocent infringement.
• Protection from infringing exports. A registered copyright can be recorded with the U.S. Customs and Border Protection for protection against the importation of infringing works.
• Satisfaction of deposit requirements. The deposited work submitted during the registration process will fulfill the mandatory deposit requirement under § 407 of the Copyright Act.

There are minimal downsides to copyright registration. The registration fee is non-refundable, and the Copyright Office may need four to six months to process an online application and longer for applications sent by mail, especially during the pandemic when paper applications will not be examined. However, unregistered works that are infringed still require registration before filing a lawsuit, which could require payment of an additional Copyright Office fee (currently $800) to expedite review within five to 10 business days. The copyright owner would not be eligible to claim statutory damages or attorneys’ fees if the expedited registration occurs more than three months after first publication. Please note, however, that the CARES Act authorized the Copyright Office to extend the three-month window for those applicants who can show that the pandemic prevented them from complying with the deadline and who submit a statement certifying under penalty of perjury that they would have met the three-month deadline but for the emergency. For instance, an applicant may be eligible for an extension of the three-month window if she is unable to mail physical deposit materials to the Copyright Office or lacks access to a computer.

Given the importance of registration and the additional benefits of completing the process early on, it is always a best practice to register copyrights promptly after publication.