My Jan. 30, 2009, blog entry indicated that, in most cases, a copyright owner must register his or her work before bringing a copyright infringement action in the U.S. Certain statutory exceptions exist to this rule. These exceptions include:
  • Certain foreign works
  • Certain types of claims relating to visual-arts works
  • Certain works that consist of sounds, images or both
  • Works for which registration has been refused by the U.S. Copyright Office. See 17 U.S.C. §411(a).
A recent decision by the U.S. Supreme Court indicates that other exceptions may exist. In Reed Elsevier, Inc. v. Muchnick, Case No. 08-103 slip op. (March 2, 2010), the Court determined that a copyright owner does not have to register his or her work to settle a copyright-infringement claim. However, the decision left many issues relating to the relationship between copyright infringement claims and copyright registration.

The Reed Elsevier decision clearly states that a copyright registration is a precondition to most copyright infringement actions in which the copyright owner is seeking to obtain one or more of the remedies that are available under the Copyright Act, such as statutory damages. The Reed Elsevier decision also suggests that federal courts may exercise jurisdiction over copyright-infringement claims that do not involve registered works. However, it is unclear what form such a claim may take. As a result, it is still a good idea for a copyright owner who believes that his or her copyright is likely to be infringed to register that copyright as soon as possible.

One issue that was not resolved by the Supreme Court in Reed Elsevier is whether the registration process must be complete before a copyright owner can bring a copyright-infringement claim. Different circuit courts within the federal court system have resolved this issue differently. Some courts have held that a copyright claimant must obtain a registration certificate when one of the exceptions described above do not apply. Other circuit courts have held that a copyright claimant merely has to file an application for registration before filing suit.