Fourth Estate Public Benefit Corp. v., LLC
2019 WL 1005829
Decided: March 4, 2019
Supreme Court of the United States


On March 4, 2019, the Supreme Court decided Fourth Estate Public Benefit Corp. v., LLC, holding that a copyright owner cannot sue for infringement before the Copyright Office has a made a determination on the work. The Court issued a unanimous opinion written by Justice Ginsburg.  We had reported on the oral arguments earlier this year — to read our coverage click here.


The Court mainly focused on the text of the Copyright Act.  The Copyright Act states “no civil action for infringement of [a] copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made . . . .” 17 U.S.C. § 411(a). The Court felt the only way to read “registration . . . has been made” consistently with the rest of the act is for it to mean the Copyright Office makes a decision.  “Read together, § 411(a)’s opening sentences focus not on the claimant’s act of applying for registration, but on action by the Copyright Office—namely, its registration or refusal to register a copyright claim.” Fourth Estate Public Benefit Corp. v., LLC, 2019 WL 1005829 *4 (Mar. 2019).


The requirement is only that the Copyright Office issues a decision on if a work can be copyrighted. If the Office issues a rejection, the owner can still sue to overturn the rejection. The Supreme Court’s decision changes the timing of when a copyright owner can file a lawsuit. It was common practice for owners to file a lawsuit then file an application with the Copyright Office. Now a copyright owner needs to file the application and receive a decision from the Copyright Office before filing a lawsuit. Overall, this decision will likely have minimum impact on copyright owners, because a registration can be obtained in a short amount of time. For regular registration, the wait time is about seven months, but the Copyright Office also has an expedited process which allows copyright owners to get a decision within five days. The expediting fee is about $800, but that pales in comparison to the legal fees the claimant is willing to incur to initiate a lawsuit.


The Supreme Court’s decision has had an impact on other pending litigation though. The plaintiffs in the dance emote cases have withdrawn the current cases and plan to refile due to the outcome of Fourth Estate. The Copyright Office rejected rapper 2 Milly’s and Alfonso Ribeiro’s dances for being non-copyrightable. 2 Milly and Ribeiro have asked the Copyright Office to reconsider its decision, but until the Copyright Office issues a final decision they cannot file a lawsuit. Interestingly, the Copyright Office did register Backpack Kid’s “Flossin Dance” as a choreographic work. Orange Shirt Kid also received a registration, but for a motion picture and not a choreography. The true impact of the Fourth Estate case may be on marginal copyright cases that cannot easily get registered in the first place.  In the meantime, we will continue to monitor the dance emote cases (particularly Backpack Kid’s case), and provide updates as warranted.

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