It is always a cause for celebration and consternation when The Nine see fit to take up a copyright issue. And in recent weeks, we have seen not one, but two copyright questions propped up before the Supremes. While the decisions in these cases are not likely to destroy the integrity of our electoral process or deny basic civil rights to large swaths of our populace, they are of utmost importance to artists and copyright holders and those who spend their days representing these groups.
Oral arguments in the first of these cases, Fourth Estate Public Benefit Corporation v. Wall-Street.com, centered around a dry but crucial issue with potentially far-ranging consequences. The details of the dispute are well ventilated but the oral arguments brought fresh insight into how the inhabitants of One First Street viewed this thorny legal question.
This question, of course, is whether the text of the Copyright Act requires the Copyright Office to act on a copyright registration application before the applicant can file suit in federal court.
Justice Breyer noted that section 410(d) of the Act expressly states that the “effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined to be registered, have all been received by the Copyright Office.” In doing so, he seemed to proffer that this language indicates that the effective date of registration is when those three things are received by the Copyright Office so long as the Copyright Office later approves the submission.
But, elsewhere in the statute, the language could be interpreted to read that a copyright holder who has fully complied with the registration application formalities but does not have a registration approved by the Copyright Office is not able to bring her case in court. Justice Breyer referenced this potential need for the Copyright Office to act by analogizing to another legal requirement with which many of us are familiar. He queried of appellant’s counsel: “Do you drive without a driver’s license when yours has expired because you wrote in to the registry of motor vehicles but they haven’t yet licensed you?” That analogy may not be perfect because the Copyright Act and the various drivers’ licensure statutes have wildly disparate language, but it does reveal that he may believe that it is the date of the Copyright Office’s action (approval or refusal) and not the copyright holder’s application that will drive his reasoning.
Justice Kagan also bore in on the statutory text, stating that section 411(a) of the Act’s use of the term “registration” is “framed in the passive voice[,]” and noting that this would seem to indicate action by the Copyright Office and not the copyright holder. The full effect of the Justices’ questioning was that they believed that the statutory text could be read in varying ways. This led to a ventilation of the relevant policy concerns. In this regard, Justice Gorsuch singled out the state of Copyright Office affairs at the time the language under consideration was written, noting that “that Congress pretty much assumed that registration decisions would happen promptly[.]” There was evidence before the Court that registration does not happen promptly in our modern age, and often takes months and even years, with the average processing time being seven months. Many copyright infringement cases are open and shut within seven months, and to delay a copyright holder the right to bring an action to enforce her rights for this amount of time does not seem to be in accord with the policy behind the Copyright Act.
The discussion went adrift a few times, once with Justice Roberts committing the common mistake of transposing copyright and trademark law. He notes that a certain approach may be sufficient, “assuming that the registrar has registered the mark.” This reference to a “mark” seemed to throw appellant’s counsel to a degree, as he then refers to the “mark” before correcting course and noting that it was actually a copyright that was at issue.
And Justice Sotomayor, seeing the link between certain physical property recording statutes and copyright registration, asked, “When is the copyright registration published?” When the appellant’s advocate noted that the works were “published,” i.e., made available on the Copyright Office’s searchable database, after the Copyright Office acts, she replied that “it seems illogical to think that you’re going to get rights against the third-party who’s not on notice that your copyright has been registered because it’s not public.”
This seems logical in application but does not reflect actual practice. While it is standard to review real estate records to ascertain ownership and liabilities, those who use the copyrighted work of others do not review the Copyright Office records to ascertain ownership before they decide to copy. Even if they wanted to, the Copyright Office records are so opaque and difficult to traverse that it is very unlikely that any helpful information could ever be located. Justice Sotomayor’s line of thinking also overlooks that notice is no longer required under the Copyright Act and that rights exist upon fixation in a tangible medium, not “publication” of the registration.
A more glaring problem arose during the Court’s questioning of the U.S. government witness, who appeared as an amicus in support of the appellee and urged the Copyright-Office-must-first-act approach. He argued that the delay that the this approach causes results in little to no damage to copyright holders. To illustrate his point, he uses an example that, in reality, disproves his position almost entirely. As we know, much infringement today occurs online. He argued that when “a copyright owner comes to you and says there is a work on your site that’s infringing my copyrights, you have to take it down. And that’s not — does not turn on whether the work is registered or not.” Au contraire, mon frere. In reality, while an artist whose work appears online without permission can send a take-down notice, many major sites will refuse to remove the material until you provide them with a registration. This is especially true if the poster of the disputed content objects. So, this example, more than most, establishes that the approach that forces the copyright holder to wait an average of seven months before being able to remove infringing material from a website or take other action is not the well-taken one.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
When A Driver’s License Is Like A Copyright Registration: Talking Copyright With The Supremes curated from Above the Law
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