Likelihood of Copyright Confusion – The FOURTH ESTATE Case

So okay, the Supreme Court just issued a narrow but extremely important case on copyright registration. It’s called Fourth Estate Public Benefit Corp. v. Wall-Street.com and you can read it here: https://www.scotusblog.com/case-files/cases/fourth-estate-public-benefit-corp-v-wall-street-com/

In a nutshell what happened was this: A content producer called “Fourth Estate,” clever journalism reference et cetera, licensed some articles to a website called “Wall-Street.com.” WSC canceled the license but left the articles up on their website. Putting the articles on the website without a license is (potentially) copyright infringement, and Fourth Estate sued them.

There is a rule in the US that for US-created works, you can’t sue for copyright infringement unless you’ve tried to register the copyright on the work and the Copyright Office has either issued the copyright certificate or has refused to register the copyright. (We’ll get into that in a minute.) Fourth Estate had not registered the copyrights on the works, so they couldn’t sue. Not a problem: they just need to register the works and then, off to the courthouse. The damages would be retroactive, and we’ll get into that later.

HOWEVER.

There was what lawyers call a “circuit split” on the question of what exactly the statute required. If you want to read the exact provision in question, it’s 17 U.S. Code § 411.

  • In some US courts, the rule was that you could file your lawsuit as soon as you filed your registration application. It takes several months to get a certificate back, but you didn’t have to wait for that part, you just had to show, in essence, a copy of your filing receipt to the court and you were good to go.
  • In other US courts, the rule was that you had to have either gotten your copyright certificate, or you had to have gotten a refusal. No certificate and no refusal? No lawsuit. If you tried the other side could move to dismiss the lawsuit for lack of standing, and they would win.

If it seems confusing that you could still sue after getting a refusal, you’re right, it is. But the thing is, the Copyright Office doesn’t have the final say over whether something is protected by copyright: the courts do. If the CO refuses registration, you can still sue for copyright infringement. It’s just that the certificate grants what’s called the presumption of validity. What that means is if you have your certificate, and the other side claims your work isn’t copyrightable, the burden of proof is on them to show that it isn’t. In other words, they have to prove that the CO made a mistake giving you the registration. If they can’t do that, they lose on that question.

On the other hand, if you don’t have a certificate, the burden of proof is on you to show that it is copyrightable. In other words, you have to show that the CO made a mistake not giving you the registration. If you meet your burden, you can still sue, even without a certificate. Interestingly, if you do this, you are required to give the CO notice that you are doing it, and they can, if they want, participate in the suit to the extent that they can defend their decision to the court. So as you can see, that certificate is a HUGE advantage and not having it is very risky, but it is not required.

Aaaaaannnnyway, Fourth Estate sued WSC in a “just file the thing and we’ll sort it out later” jurisdiction. WSC moved to dismiss the lawsuit on the grounds that hey, the statute says registered or refused, not “Future Unclear: Ask Again Later.” The argument got up to the Supreme Court, and Justice Ginsberg, writing for a unanimous (!) Court, said, “The statute says ‘registration or refusal.’ A filing receipt is neither of those things. Case dismissed*. By the way, we understand that it takes forever, relatively speaking, to get a registration certificate. That sucks. We feel for you, but take it up with Congress.”

Okay I’m paraphrasing a little there. No offense, Justice Ginsberg.

So. Circuit split resolved: the rule is, registration certificate, or refusal to issue, or no standing to sue so no lawsuit allowed. What does that mean to you, the incredibly creative artist and content producer, in terms of your rights? It means this:

  1. First and foremost: this is an entirely procedural question. Your substantive rights have not been affected at all. Your creations are still protected by copyright the moment they are created and fixed in a tangible medium of expression.
  2. You still have all the rights you had before. You can send a DMCA takedown notice with NO REGISTRATION. You can license your work to others with NO REGISTRATION. Et cetera.
  3. If you do sue someone for copyright infringement, damages are calculated from the time the infringement began, not the time you registered or the time your certificate issued. Damages are retroactive so long as you ultimately win the copyright lawsuit. Copyright infringement has a statute of limitations of only three years, so it’s always best to act as quickly as you can either way.
  4. It’s a better idea than ever to register your copyrights before somebody infringes them. Not only will you now meet this new requirement, but you will still get all the amazing benefits you got before, like the ability to seek statutory damages, increased damages, and fees and costs.

The Copyright Office does offer an alternative to waiting several months to get your certificate: it’s called “Special Handling.” You pay a US$800.00 (!) fee when you file, and you should get your certificate within five business days. (No promises, but it’s always been quick when I did it.) Eight hundred dollars is a lot of money, but to be nigh-brutally frank, if you don’t have eight hundred dollars, your ability to financially support a Federal copyright lawsuit may be questionable. They are Not Cheap.

I’m not exactly rolling in dough either, and I don’t mean to dismiss the concerns of artists of limited means. (I am one.) But that’s just the way it is until we get our Copyright Small Claims Court. Sorry.

Happily, if you take my (non-legal) advice and register your copyrights regularly, you hopefully won’t have to do that. And it should be noted that while you can register your own copyrights (see this blog post for an example of the process) a friendly copyright lawyer can be very helpful in this regard, including showing you how to fill out the form (it’s easy to do wrong) and advising you on how to save just gobs of money by filing multiple works together as a single collection with a single filing fee.

Good. Everybody take a deep breath: the sky is not falling, nobody’s lost any substantive rights, and small creators aren’t any worse off than they were before. We’ll make it together, folks!

As always, comments and questions are welcome here, on Twitter @legalinspire, or by email. Thanks for reading!

M

*The Supreme Court doesn’t usually dismiss the actual case – it sends it back to the lower court so the lower court can enter a new result consistent with the Supreme Court’s decision. But for all practical purposes: Case dismissed.

Published by

Marc Whipple

I'm from Iowa: I only work in cyberspace. :) But seriously, if you are looking for a blurb for a panel or other event, here's a suggested bio. Marc Whipple grew up in Iowa and has a degree in Physics and Math from Drake University. After receiving his J.D. from John Marshall, he became the General Counsel for Meyer/Glass Design, a Chicago invention studio descended from the legendary innovation firm Marvin Glass & Associates. When Meyer/Glass started an interactive division, he helped set up, grow, and eventually spin off the software studio. After his work at Meyer/Glass, he became the General Counsel of Incredible Technologies, Inc., and helped it take its first steps into regulated casino gaming as well as providing legal support for its famous GOLDEN TEE video golf worldwide tournament network. Marc is now Of Counsel to Crawford Intellectual Property, LLC, based in Barrington, IL. He provides experienced support for patent, trademark, copyright, and technology issues as well as advising creatives at every level from startup to established studio. Marc is licensed to practice law in the state of Illinois and before the United States Patent and Trademark Office as a Registered Patent Practitioner.

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