January 8, 2019
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
GiNSBURG delivered the opinion of the Court.
Fourth Estate Public Benefit Corporation (Fourth Estate), a
news organization, licensed works to respondent
Wall-Street.com, LLC (Wall-Street), a news website. Fourth
Estate sued Wall-Street and its owner for copyright
infringement of news articles that Wall-Street failed to
remove from its website after canceling the parties'
license agreement. Fourth Estate had filed applications to
register the articles with the Copyright Office, but the
Register of Copyrights had not acted on those applications.
Title 17 U.S.C. §411(a) states that "no civil
action for infringement of the copyright in any United States
work shall be instituted until . . . registration of the
copyright claim has been made in accordance with this
title." The District Court dismissed the complaint, and
the Eleventh Circuit affirmed, holding that
"registration . . . has [not] been made" under
§411(a) until the Copyright Office registers a
Registration occurs, and a copyright claimant may commence an
infringement suit, when the Copyright Office registers a
copyright. Upon registration of the copyright, however, a
copyright owner can recover for infringement that occurred
both before and after registration. Pp. 3-12.
(a) Under the Copyright Act of 1976, as amended, a copyright
author gains "exclusive rights" in her work
immediately upon the work's creation. 17 U.S.C.
§106. A copyright owner may institute a civil action for
infringement of those exclusive rights, §501(b), but
generally only after complying with §411(a)'s
requirement that "registration . . . has been
made." Registration is thus akin to an administrative
exhaustion requirement that the owner must satisfy before
suing to enforce ownership rights. P. 3.
(b) In limited circumstances, copyright owners may file an
infringement suit before undertaking registration. For
example, a copyright owner who is preparing to distribute a
work of a type vulnerable to pre distribution
infringement-e.g., a movie or musical
composition-may apply to the Copyright Office for
preregistration. §408(f)(2). A copyright owner may also
sue for infringement of a live broadcast before
"registration . . . has been made." §411(c).
Outside of statutory exceptions not applicable here, however,
§411(a) bars a copyright owner from suing for
infringement until "registration . . . has been
made." Fourth Estate advances the "application
approach" to this provision, arguing that registration
occurs when a copyright owner submits a proper application
for registration. Wall-Street advocates the
"registration approach," urging that registration
occurs only when the Copyright Office grants registration of
a copyright. The registration approach reflects the only
satisfactory reading of §411(a)'stext. Pp. 3-12.
Read together, Â§411(a)'s first two sentences focus on
action by the Copyright Officeânamely, its registration or
refusal to register a copyright claim. If application alone
sufficed to "ma[ke]" registration,
§411(a)'s second sentence-which permits a
copyright claimant to file suit when the Register has
refused her application-would be superfluous. Similarly,
§411(a)'s third sentence-which allows the Register
to "become a party to the action with respect to the
issue of registrability of the copyright claim"-would
be negated if an infringement suit could be filed and
resolved before the Register acted on an application. The
registration approach reading of §411(a) is supported
by other provisions of the Copyright Act. In particular,
§410 confirms that application is discrete from, and
precedes, registration, while §408(f)'s
preregistration option would have little utility if a
completed application sufficed to make registration. Pp.
Fourth Estate primarily contends that the Copyright Act
uses the phrases "make registration" and
"registration has been made" to describe
submissions by the copyright owner. Fourth Estate therefore
insists that §411(a)'s requirement that
"registration . . . has been made in accordance with
this title" most likely refers to a copyright
owner's compliance with statutory requirements for
registration applications. Fourth Estate points to other
Copyright Act provisions that appear to use the phrase
"make registration" or one of its variants to
describe what a copyright claimant does. Fourth Estate
acknowledges, however, that determining how the Copyright
Act uses the word "registration" in a particular
provision requires examining the "specific
context" in which the term is used. The "specific
context" of §411(a) permits only one sensible
reading: The phrase "registration . . . has been
made" refers to the Copyright Office's act grant-
ing registration, not to the copyright claimant's
request for registration.
Fourth Estate's contrary reading stems in part from its
misapprehension of the significance of certain 1976
revisions to the Copyright Act. But in enacting
§411(a), Congress both reaffirmed the general rule
that registration must precede an infringement suit and
added an exception in that provision's second sentence
to cover instances in which registration is refused. That
exception would have no work to do if Congress intended the
1976 revisions to clarify that a copyright claimant may sue
immediately upon applying for registration. Noteworthy,
too, in years following the 1976 revisions, Congress
resisted efforts to eliminate §411(a), which contains
the registration requirement.
Fourth Estate also argues that, because "registration
is not a condition of copyright protection,"
§408(a), §411(a) should not bar a copyright
claimant from enforcing that protection in court once she
has applied for registration. But the Copyright Act
safeguards copyright owners by vesting them with exclusive
rights upon creation of their works and prohibiting
infringement from that point forward. To recover for such
infringement, copyright owners must simply apply for
registration and await the Register's decision.
Further, Congress has authorized preregistration
infringement suits with respect to works vulnerable to
predistribution infringement, and Fourth Estate's fear
that a copyright owner might lose the ability to enforce
her rights entirely is overstated. True, registration
processing times have increased from one to two weeks in
1956 to many months today. Delays, in large part, are the
result of Copyright Office staffing and budgetary shortages
that Congress can alleviate, but courts cannot cure.
Unfortunate as the current administrative lag may be, that
factor does not allow this Court to revise
§411(a)'s congressionally composed text. Pp. 7-12.
856 F.3d 1338, affirmed.
prompt registration of copyright claims, 17 U.S.C.
§411(a) states that "no civil action for
infringement of the copyright in any United States work shall
be instituted until . . . registration of the copyright claim
has been made in accordance with this title." The
question this case presents: Has "registration . . .
been made in accordance with [Title 17]" as soon as the
claimant delivers the required application, copies of the
work, and fee to the Copyright Office; or has
"registration . . . been made" only after the
Copyright Office reviews and registers the copyright? We
hold, in accord with the United States Court of Appeals for
the Eleventh Circuit, that registration occurs, and a
copyright claimant may commence an infringement suit, when
the Copyright Office registers a copyright. Upon registration
of the copyright, however, a copyright owner can recover for
infringement that occurred both before and after
Fourth Estate Public Benefit Corporation (Fourth Estate) is a
news organization producing online journalism. Fourth Estate
licensed journalism works to respondent Wall-Street.com, LLC
(Wall-Street), a news website. The license agreement required
Wall-Street to remove from its website all content produced
by Fourth Estate before canceling the agreement. Wall-Street
canceled, but continued to display articles produced by
Fourth Estate. Fourth Estate sued Wall-Street and its owner,
Jerrold Burden, for copyright infringement. The complaint
alleged that Fourth Estate had filed "applications to
register [the] articles [licensed to Wall-Street] with the
Register of Copyrights." App. to Pet. for Cert.
18a.Because the Register had not yet acted on
Fourth Estate's applications,  the District Court, on
Wall-Street and Burden's motion, dismissed the complaint,
and the Eleventh Circuit affirmed. 856 F.3d 1338 (2017).
Thereafter, the Register of Copyrights refused registration
of the articles Wall-Street had allegedly
granted Fourth Estate's petition for certiorari to
resolve a division among U.S. Courts of Appeals on when
registration occurs in accordance with §411(a). 585 U.S.
(2018). Compare, e.g., 856 F.3d, at 1341 (case
below) (registration has been made under §411(a) when
the Register of Copyrights registers a copyright), with,
e.g., Cosmetic Ideas, Inc. v. IAC/Interactivecorp,
606 F.3d 612, 621 (CA9 2010) (registration has been made
under §411(a) when the copyright claimant's
"complete application" for registration is received
by the Copyright Office).
the Copyright Act of 1976, as amended, copyright protection
attaches to "original works of authorship"-
prominent among them, literary, musical, and dramatic
works-"fixed in any tangible medium of expression."
17 U.S.C. §102(a). An author gains "exclusive
rights" in her work immediately upon the work's
creation, including rights of reproduction, distribution, and
display. See §106; Eldred v. Ashcroft, 537 U.S.
186, 195 (2003) ("[F]ederal copyright protection . . .
run[s] from the work's creation."). The Copyright