Timely registration avoids delays in being able to\u00a0bring a lawsuit, but timely\u00a0registration especially\u00a0before any infringement allows an author\/creator to take advantage of additional remedies, including the options of recovering statutory damages and\/or attorneys\u2019 fees.<\/p>\n
First SCOTUS decision:<\/em><\/strong> In\u00a0Fourth Estate Public Benefit Corp. v.\u00a0Wall-Street.com, the Court held that a copyright owner may not sue for infringement until the Copyright Office has ruled on its application for copyright registration and you have the Certificate of Registration in hand.\u00a0Some Federal Courts permitted a party to start litigation while the registration\u00a0process had been commenced but the Certificate of Registration not as yet rendered. Some Federal Courts required the issuance of the registration with the United States Copyright Office (USCO) as the “key to the courthouse”. Without the registration in hand your case could and would likely be tossed.\u00a0On some occasions that policy led to photographers making “expedited\u00a0copyright filings” also known as “special handling” and incurring a USCO fee of about $800 to process and application\u00a0in days rather than months often for the express purpose of being able to file a lawsuit ASAP.<\/p>\n The Supreme Court\u2019s decision has the effect of creating a single policy for all Federal Courts. The Court unanimously\u00a0held that the language of Section 411(a) of the Copyright Act requires registration<\/strong>\u00a0rather than just the submission of an\u00a0application\u00a0for registration. SCOTUS recognized that the ruling could\/would delay a plaintiff\u2019s ability to file suit for infringement\u00a0and possibly result in the Copyright Act\u2019s three-year statute of limitations\u00a0expiring\u00a0if the copyright owner waited too long before obtaining a registration, but those concerns didn’t affect the Court\u2019s interpretation of Section 411 –\u00a0that an actual\u00a0registration\u00a0must have\u00a0been issued relative to the work in order to file suit.\u00a0<\/strong><\/p>\n Second SCOTUS decision:<\/strong><\/em> In the nightcap of the high court\u2019s double header –\u00a0Rimini Street, Inc. v. Oracle –\u00a0the Supremes held\u00a0that the prevailing party in a copyright infringement case is entitled to only the regular set of taxable costs enumerated in the federal code, in addition to damages. So if you confused The DaVinci Code with the equally entertaining\u00a0Federal Code and didn’t read the later, no worries.\u00a0\u00a0SCOTUS has read the Federal Code\u00a0for you and interpreted it for use in this case and others like it.<\/p>\n The trial court had ordered Rimini Street, which infringed certain Oracle copyrights, to pay Oracle $12.8 million in \u201cnontaxable costs\u201d accrued in litigation, including fees for expert witnesses, e-discovery, and jury consulting.\u00a0Typically, an award of costs to a prevailing litigant is limited to six types of expenses enumerated in the federal code.<\/p>\n However… Section 505 of the Copyright Act,\u00a0permits\/allows\/empowers a trial court to award\u00a0\u201cfull costs.\u201d<\/strong>\u00a0The Supreme Court found that the word \u201cfull\u201d in this sense works as a term of \u201cquantity or amount,\u201d and does not expand the\u00a0categories\u00a0of costs, and thus the grant of $12.8 million in nontaxable costs was improper. Or in other words, it was calculated incorrectly.<\/p>\n What does the above legalese really\u00a0mean to you, yuze and y’all?\u00a0 A successful copyright infringement plaintiff is limited in the costs they can recover. You now have another reason to file your applications for registrations as early as possible. With rare exceptions If infringement occurs before your registration, you are limited to actual damages, profits, and taxable costs.\u00a0If infringement occurs after your registration, copyright plaintiffs can seek and potentially recover statutory damages which may (or many not ) be greater than actual damages\u00a0and attorneys\u2019 fees on top of the statutory damages.<\/p>\n In plain English – register everything, all of the time, as soon as possible after you have created it. As Monty Python said \u2013 \u201cNo one expects the Spanish Inquisition\u201d and likewise no one expects their work to be ripped off. Avoid posting\u00a0or using it anywhere until at least after registration and preferably after\u00a0you have your registration in hand. Yes, we know that doing that if often impractical if not impossible in real life. Nevertheless, it remains the “Best Practice”. Jack will not wait sometimes to get his certificate for things he wants to show more quickly, but after many, many registrations, he\u2019s confident that his registrations will be approved and he doesn\u2019t post anything online without an effective registration date and a copyright notice watermarked on his image. Like the image below from a trip to Cuba, he didn\u2019t show it on his social media feeds until he completed the registration. He\u2019d prefer to have the certificate in hand, but this is the next best practice after the \u201cBest Practice\u201d that Ed hounds him about (and is correct). But sometime you have to make business decisions. At the very least, register your work before showing it anywhere.<\/p>\n Anecdotally,\u00a0we are compelled to inform you based on legal reportage and comments made to Ed directly by attorneys present and\/or participating in the 4th Estate case. It was rather clear that at least 2 members of SCOTUS were surprisingly unaware and\/or unprepared for some of the rather simple, time honored, legal concepts relating to copyright law dating back to the US Constitution. No matter.\u00a0 Consider yourself bound by these two rulings likely for the rest of your career…at least.<\/p>\n <\/p>\n
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