Prior to March 2, 2010, the law was well settled that in order to enforce a copyright in court, the party bringing the claim must have a registration. Copyright standing is governed by Section 411(a) of the Copyright Act of 1976, which states that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” Accordingly, copyright infringement lawsuits would be dismissed for lack of subject matter jurisdiction if the plaintiff did not have a registration.
On March 2, 2010, however, Justice Thomas issued an opinion in Reed Elsevier, Inc. v. Muchnick clarifying that federal courts do have jurisdiction to hear copyright infringement suits in the absence of a registration. In the opinion, the Court decided that jurisdictional requirements must be expressed in the statute, and since Section 411(a) does not clearly state that it is a jurisdictional requirement, it is not. Instead, the Court concluded that the registration requirement of Section 411(a) imposes a non-jurisdictional pre-condition for filing a claim. In sum, Muchnick held that a party filing suit alleging infringement of an unregistered work should not be dismissed for lack of subject matter jurisdiction on the basis of lack of registration alone.
Many copyright owners and litigants interpreted this case to mean that copyright registration is no longer necessary for enforcement in court. However, this is not necessarily true. Even though a court has jurisdiction over a claim, the claim can still be dismissed on substantive grounds. Since 2010, the courts have been deciding that a statutory element of a copyright infringement claim is missing without registration. Therefore, there is a high likelihood that a court will grant a motion for summary judgment or motion to dismiss based on unregistered works for failure to state a claim. Accordingly, although the Muchnick decision may indicate otherwise, it is still wise—and probably necessary—to obtain copyright registration before proceeding to court.
This update was prepared by Nutter's Intellectual Property practice. For more information, please contact your Nutter attorney at 617.439.2000.
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