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11th Circuit Holds That Copyright Registration (Not An Application) Is Necessary to Commence a Copyright Infringement Claim

11th Circuit's opinion summarizes the circuits' split on the question of what "Registration" of a copyright as a precondition to filing suit for copyright infringement means. This Court decides an issue that divides the circuits: Whether registration occurs when an owner files an application to register the copyright, or when the Register of Copyrights registers the copyright. It finds that the first instance is correct.

A summary from the decision fourth estate.pdf:

The question when registration occurs has split the circuits. The Tenth Circuit follows the "registration" approach to section 411(a), which requires a copyright owner to plead that the Register of Copyrights has acted on the application--either by approving or denying it -- before a copyright owner can file an infringement action. La Resolana, 416 F.3d at 1197-1203. In contrast, the Ninth and Fifth Circuits follow the "application" approach, which requires a copyright owner to plead that he has filed "the deposit, application, and fee required for registration," 17 U.S.C. § 411(a), before filing a suit for infringement. Cosmetic Ideas, 606 F.3d at 618-19; Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 365 (5th Cir. 2004), abrogated in part by Muchnick, 559 U.S. 154; Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); see also Melville B. Nimmer, et al., 2 Nimmer on Copyright § 7.16[B][3][b][v] (2016). The Eighth Circuit, in dicta, also endorsed the application approach. Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006). The case law of the Seventh Circuit contains conflicting dicta on whether it follows the application approach, Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003) ("[A]n application for registration must be filed before the copyright can be sued upon."), or the registration approach, Gaiman v. McFarlane, 360 F.3d 644, 655 (7th Cir. 2004) ("[A]n application to register must be filed, and either granted or refused, before suit can be brought."), or whether it has even decided this question, Brooks-Ngwenya v. Indianapolis Pub. Sch., 564 F.3d 804, 806 (7th Cir. 2009). And both the First and Second Circuits have acknowledged the circuit split but have declined to decide whether to adopt the application approach or the registration approach. Alicea v. Machete Music, 744 F.3d 773, 779 (1st Cir. 2014); Psihoyos v John Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014).

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