Supreme Court holds you’ll need to obtain registration of your copyright in order to protect that awesome label art and witty copy

We’ve written on many occasions about the benefits and added protections of copyrighting your labels, advertising, label art and other protectable content. The United States Supreme Court has recently held in a unanimous decision, that copyright owners have to register with the United States Copyright Office in order to commence a lawsuit to enforce their rights.

In the case, Fourth Estate Public Benefit Corp. v., LLC, (link to opinion), the Court held that the Copyright Act requires the Copyright Office issue a registration certificate in order to commence a lawsuit to protect your rights. Prior to this, there had been some confusion as to whether a mere application was enough – IT IS NOT.

For those interested, the Court’s decision relied heavily on an interpretation of Section 411(a) of the Copyright Act:

[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim.

In the case, an online news producer licensed content to but the license expired and the website didn’t take down the licensed content. The producer brought suit and the website moved to dismiss arguing the copyrights had been applied for, but hadn’t registered. The motion to dismiss was granted by the district court and then affirmed by the appellate court and then affirmed again by the Supreme Court. The Court held that since the registration process only takes a few months, fears that requiring issuance of the certificate as opposed to application would slow down and hinder the right to sue were overstated. There is little danger that an attentive copyright owner would blow the three-year statute of limitations. (There’s also a rush fee available – so…)

The takeaway: Get those creative elements registered to add a tool to your box in defending and protecting your brand.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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