How Fast Can I Sue?

If one discovers infringement of an unregistered copyrighted work, one needs to consider the forum of the potential infringement litigation to determine whether one can sue immediately after the Copyright Office receives the completed application, or must wait for the certificate to issue before suing.  The implications are obvious, particularly for one who wants to seek a TRO or preliminary injunction.

In Cosmetic ideas v. IAC/InteractiveCorp, the Ninth Circuit weighed in on whether the pre-litigation registration requirement in Section 411 of the Copyright Law requires that the Copyright Office actually register a work before one can sue for infringement, or it is sufficient for the completed application to have been received by the Copyright Office.  Courts have been split on this issue.  The Ninth Circuit opinion lists the courts in each camp.  Notably the Fifth and Seventh Circuits have held that submission of the application is sufficient, and the Tenth and Eleventh Circuits require issuance of the registration certificate. The Ninth Circuit held that submission of a completed application is all that is required.

Where this is likely to matter is in cases involving what one might call non-monetized copyrighted works, works that generally earn the author no direct revenue and therefore generally go unregistered, like this blog or maybe a sales brochure, flyer, catalog or Web page. It may not be worthwhile to register those as a matter of course, but if a competitor copies any of them, one might want to sue. 

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Comments (1) Read through and enter the discussion with the form at the end
Philippine Lawyer - July 5, 2010 4:14 AM

Thank you for this helpful information.

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