Supreme Court to Make a Dumb Copyright Rule Somewhat Less Dumb

Nice Copyright! Too Bad it’s Unregistered

Updated February 4, 2019: The Supreme Court ruled today, essentially adopting the “registration rule.” See Tara’s blog post.
In the United States, we have a stupid way of dealing with copyrights. Here it is: Everything you create is subject to copyright as soon as you “fix it in a tangible medium.” This is almost trivially easy. The thing you create just has to be minimally “original” (i.e., somewhat more creative than a phone book) and set down on paper, on canvas, on film, on hard drive, on a memory stick, etc. You create copyrighted works all the time. The last email you sent was probably subject to copyright, provided you said something more than just “OK” or “Will do.”
BUT, you can’t enforce the copyright in the thing you created until you have registered the thing you created with the U.S. Copyright Office—or, you’ve tried, but the U.S. Copyright Office refused registration. More technically, you can’t sue for copyright infringement unless and until you have a registration, or you’ve done all you need to do to apply to register the work, but the U.S. Copyright Office rejected your application.

OK, fine, you say. That’s really weird—“one hand clapping” weird. You have a copyright but you can’t enforce it. It’s like having a new car, but without the wheels. A bit awkward if someone starts ripping you off, but you didn’t know you needed to register first. But if that’s the rule, copyright owners will just have to live with it. At least we know what the rule is.
Ha! Psych! We do not know what the rule is! You see, this dumb, awkward rule is made even dumber and more awkward because we don’t know when a work is registered! I mean, how can we not know something like that? Isn’t there a statute telling you that?

Clarity vs. Common Sense

Why, yes, yes there is. Section 411(a) of the Copyright Act is quite clear: no lawsuits until registration or rejection by U.S. Copyright Act.
But then you realize: wait, this rule is not just awkward; it’s plain stupid. Why? Because, once you apply to register your work (and assuming you’ve done everything correctly), there are only two possible outcomes: registration or rejection. And both of those outcomes give you the right to sue. Why wait for the registration to issue when it’s inevitable that you’ll end up with the right to sue?
And waiting might not be trivial. It can take months for the U.S. Copyright Office to issue a registration (or rejection). Even though the vast majority of works are ultimately registered, someone at the U.S. Copyright Office still has to go through your application, review the work, and make sure that your work is worthy of registration. You can expedite the process¹Called “special handling.”, but it costs almost twenty times as much as regular applications. Meanwhile, whoever is ripping you off is continuing to rip you off.
So, which is it? Can you sue to enforce your copyright in your work once you’ve applied (properly) to register your work, as common sense would lead you to believe? Or must you wait until the registration actually issues, as the statute plainly requires?
Courts have split on this issue! Some courts go with the “application rule,” and others with the “registration rule.” If you’re in the Sixth Circuit (like me), your Circuit Court of Appeals hasn’t even ruled on the issue, so you don’t really know what the rule is. ²Though, based on District Court decisions in the Sixth Circuit, the best guess is that we’re “registration rule.”
Yesterday, the Supreme Court graciously decided to resolve the part of this mess that it can actually resolve, i.e., answering when the right to enforce copyright starts. Alas, it can do nothing about the registration requirement itself. We’re stuck with that. My prediction: unanimous in favor of the “registration rule,” though my heart pulls for the “application rule.” My guess is the Supreme Court reasons that statutory language is statutory language, even if it’s kind of stupid, so long as it’s not unworkable. And the statutory system isn’t unworkable, just dumb.

Wait, Why Do We Do it This Way Again?

You might be wondering, at this point: why do we even have a registration requirement? Answering that requires a short history lesson. The current Copyright Act was enacted in 1976 and took effect in 1978. Before that, to have copyright in your work, you had to do two things: (1) publish the work with notice (i.e., one of those copyright notices somewhere in the work); and (2) register the work with the copyright office³Updated June 30, 2018: Per Pamela’s comment below, the registration wasn’t a strictly requirement for federal copyright protection but was still a prerequisite for enforcement. The way it worked was, if you didn’t “promptly” register the work, the Register of Copyright could demand that you register it; and then, if you didn’t, the copyright became void..
If you screwed up (1) or really screwed up (2)⁴The law was a bit more forgiving about timely registration. Updated: See previous note., you got no copyright, and your work went straight into the public domain, which is kind of terrifying. The key, though, is that registration was a requirement for copyright.⁵Updated: Not strictly true. See previous two notes. If you didn’t register, you risked losing your copyright. I’ve read cases where the court was deciding whether a work was timely registered, so it must have happened often enough. It might be more accurate to say registration was a practical requirement, since no one wanted to risk voiding their copyright.
But the rest of the world didn’t work like that. It felt that copyright was almost an inherent right of creativity, and thus, it arose as soon as the creation was finished. The idea of a work going straight into the public domain was viewed with some horror. This difference is less a reflection of U.S.-vs.-the-world exceptionalism, and more a reflection of the circumstances in which the different strands of copyright law arose. In jolly early 18th century Britain, it arose in the context of highly regulated printing houses, when even highly creative types kind of had to pretend they weren’t being creative at all⁶Imitation was the name of the game. And, yet, no one actually wanted “imitation.”. But in bloody late 18th century France, it arose in the context of the Romantic movement and the French Revolution—the cult of the artist, poets as “unacknowledged legislators of the world,” etc.
Anyway, this disparity was causing trouble. Put bluntly, the United States hated the way the rest of the world did things, but no other country relied so much on copyright law—think Hollywood, Tin Pan Alley, Music Row, even Silicon Valley—and needed other countries to play ball. Eventually, the pressure got to the point that the United States started to give in.
The 1976 Act got rid of the registration requirement, but it didn’t want to completely get rid of registration.⁷The 1976 Act didn’t quite put the U.S. fully in compliance with the way the rest of the world did things, which was codified in the “Berne Convention.” That would have to wait until the Berne Convention Implementation Act of 1988. Congress saw benefits to registration. First of all, it created a handy list of creative works.⁸This is list is of limited utility, however, since there’s no obligation to update ownership information. If you thought this would be an easy way to find out whom you need to talk to about licensing a work, be prepared to be disappointed. Second, it essentially forced a donation to the Library of Congress⁹Ever wonder why the Register of Copyright works for the Librarian of Congress?. Third, it weeded out the non-serious copyrights—e.g., the copyright in your emails and letters and your children’s art—though at the cost of under-protecting some “serious” copyrights—and giving the sophisticated and wealthy a leg up on the rest of us. So Congress created this hybrid system: copyright arises the way the rest of the world thinks it should, but it can only be enforced if registered the way the United States thinks it should.¹⁰Updated: As Pamela points out in the comments, this requirement for enforcement was present in the 1909 Act. One really weird anomaly of this system is that foreign-made works are more easily protected in the United States, since they’re exempt from the registration requirement.
At least, some time this Fall, we’ll have a clear answer about part of this.
A final note: Copyright registration is really different from trademark registration. In both you’re registering something you already have: you already have a copyright when you register the work, and you already have a trademark when you register it. But trademark rights are enforceable from the get-go; you don’t need a registration. The incentive to register trademarks is that registration makes trademark rights much more easily enforced, plus some other benefits that make the trademark more robust. Copyright registration is required for enforcement (unless you’re a foreign author). There is an additional incentive to copyright registration—statutory damages and attorney’s fees—but that’s only timely registrations.¹¹Typically, if you didn’t try to register the work whose copyright you’d like to enforce until you found out about the infringement, then you won’t be eligible for these goodies.
Finally, patents are totally different again because the government action—issuing the patent vs. registering a work or a trademark—is what brings the patent into existence.
Thanks for reading!