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WASHINGTON – On Tuesday, the U.S. Supreme Court heard oral argument in Fourth Estate Public Benefit Corporation v., a case which hinges on the meaning of the phrase “registration of the copyright claim has been made” in the context of 17 U.S.C.§ 411(a).

As I noted in previous coverage of the case, the key question is whether “registration of the copyright claim has been made” within the meaning of the 411(a) when the copyright applicant delivers the required application, application, deposit, and fee to the Copyright Office, as some courts have held, or only once the Copyright Office acts on that application, as other judicial circuits have ruled.

In the case, the trial court dismissed Fourth Estate’s claims against and Jerrold Burden because Fourth Estate had “failed to plead compliance with the registration requirement.” The Eleventh Circuit Court of Appeals upheld the trial court’s dismissal of the case, leading Fourth Estate to petition the Supreme Court to hear the case.

At Tuesday’s hearing, the justices appeared to find the arguments offered counsel for and the government (which has sided with the defendant’s interpretation of the statute) more persuasive, according to an account of the hearing written for SCOTUSblog by Jessica Litman, a professor from the University of Michigan Law School.

Representing Fourth Estate, attorney Aaron Panner argued that textual evidence from the copyright statute demonstrates that registration of a work has been made once the party claiming the copyright has submitted an application, along with a copy of the work at issue and payment of the required registration fee.

Panner noted the statute uses “registration” in a variety of places, sometimes in reference to the Copyright Register accepting a claim and issuing a certificate of registration and other times referring to the copyright claimant’s filing of an application. Panner asserted that in case instance where the phrase “registration has been made” within the statute, it is in reference to acts of the copyright claimant, not actions of the Copyright Office.

According to Litman, while Justice Elena Kagan indicated she was persuaded that the Panner was in correct in asserting the statute uses the word “registration” to mean different things in various sections of the law, it was difficult to accept the notion the word is used to mean different things in the context of two neighboring sentences within the same subsection of the law.

Kagan reportedly noted that the first sentence in question used “registration has been made,” and the second sentence used the language “registration has been refused.” Kagan said that because the two sentences are linked by the word “however,” it was difficult to conclude anything other than the sentences used “registration” to refer to action by the Copyright Register in both instances.

Panner later noted to the court that copyright rights exist whether or not a claim is registered and asserted his reading of the law was necessary so plaintiffs in copyright cases could receive timely injunctive relief.


Gene Zorkin has been covering legal and political issues for various adult publications (and under a variety of different pen names) since 2002.