In Fourth Estate Public Benefit Corp. v., the Supreme Court settled the long unresolved question of whether registration or simply the application for registration is required to commence a suit for copyright infringement. In a unanimous decision authored by Justice Ginsburg, the high court ruled that a copyright owner cannot pursue infringement claims in court until the Copyright Office has registered the work at issue.

The decision resolves a long-standing circuit split over the meaning of the Copyright Act’s “registration” requirement. Some courts, notably in the Fifth and Ninth Circuits, permitted copyright owners to sue for infringement as soon as the application for registration (along with the appropriate fee and deposit copy of the work) was filed with the Copyright Office. Other courts, however, like those in the Tenth and Eleventh Circuits, relied on the plain language of the Copyright Act to hold that the Copyright Office must determine that copyright protection is warranted before registration occurs under the Copyright Act.

Rejecting numerous policy arguments from the likes of the Recording Industry Association of America and the Authors Guild, Justice Ginsburg writes in the opinion that the “registration approach” is the “only satisfactory reading” of the Copyright Act. While acknowledging that the time to process registration applications has increased from weeks to months over the years, Justice Ginsburg noted that this was a problem that “courts cannot cure” and administrative delay does not permit a court to “revise … congressionally composed text.”

While the decision brings welcome clarity on the prerequisites for bringing an infringement suit, it is controversial in that owners of time-sensitive works, such as photojournalism (and photojournalists have been responsible for a welter of copyright litigation over the past few years), must wait several months before pursuing any infringement that has potentially already devalued the works during that time period. Perhaps acknowledging this concern, Justice Ginsburg notes that preregistration is available for certain works being prepared for release. Preregistration, however, is only available for works susceptible to pre-release infringement, such as motion pictures, musical compositions, sound recordings, computer programs, video games, books and marketing photographs.