Don’t Wait to Register Copyrights

A recent federal court decision in Minnesota reminds everyone: Don’t wait to register copyrights with the U.S. Copyright Office. Until you do, you won’t be able to take any legal action for infringement.

Music publishing company Asche & Spencer (Asche) found this out recently when they were approached by the hosts of the web series “Reluctantly Healthy” to obtain a license to use pieces from their music catalog on their show. Unbeknownst to Asche, however, the show had already used their work on an unauthorized basis more than 400 times in the past. When Asche found out, they filed an application with the United States Copyright Office to register their property and then sued the show in Federal Court for copyright infringement.

The show immediately filed a motion to dismiss on the grounds that Asche had never registered the property and therefore cannot sue for its infringement. Minnesota District Court Judge David Doty heard the arguments which essentially focused on one primary issue: Can someone sue for patent infringement when they merely have applied for copyright registration or must they wait for the actual registration decision from the Copyright Office.

When is the Copyright Protected?

Judge Doty noted that courts in various jurisdictions seem to be split on this question – some say that the right to sue arises when the application is made (the “application approach”) while others contend that a copyright holder cannot sue for infringement until the property is actually registered with the Copyright Office (the “registration approach”).

Judge Doty ruled in favor of the registration approach” “registration approach” for the following reasons:

  • The plain language of the copyright statute appears to favor this conclusion by virtue of the provision stating “[N]o civil action for infringement … shall be instituted until … registration of the copyright claim has been made in accordance with this title.”
  • In addition, the Copyright Office itself has explicitly adopted this approach and courts interpreting statutes give great deference to the government agencies charged with enforcing such statutes.
  • The registration approach is consistent with Congressional intent in establishing a “robust federal catalog of copyrights” to encourage the public to examine already registered works to be sure that a work is or is not infringing on an already-produced piece. The public should be encouraged to register their works as much as possible.
  • Finally, the Registration approach furthers Congress’ intent that the Copyright Office has an opportunity to comment on whether a work warrants registration. Encouraging people to wait on the registration process would frustrate this purpose.

The lesson here is clear – do not wait to register your copyright. Move swiftly into the registration process to maximize protection against possible infringement.

For more information, read the decision in Asche & Spencer Music, Inc., v. Principato-Young Entertainment, Inc.,Kids At Play LLC, and Electus, LLC. or contact Jon Farnsworth at jfarnsworth@felhaber.com.