By J.D. Huffman
A recent Supreme Court decision regarding copyright law has caused no small amount of confusion and even despair. I’m here to demystify things a little bit!
In case you didn’t hear about it, a case called Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC was recently decided. In this case, Fourth Estate sued Wall-Street.com for publishing the former’s news content without a license. Fourth Estate’s content was not actually registered with the US Copyright Office, though registration was pending. The question before the Supreme Court was: when does copyright registration take effect for purposes of legal action? The answer: once the registration is approved, not when it is submitted.
This decision is important because different courts had reached different conclusions on this question, causing a lot of confusion and no doubt delaying a number of copyright cases. One effect it had fairly quickly was that a number of individuals suing Epic Games over copying their dance moves into the video game Fortnite subsequently dropped their claims, as they had not actually registered their dances with the US Copyright Office. (Yes, you can register a dance! It is considered a work of choreography and thus copyrighted.)
Where things got a little hairy was in the implications for creators themselves. Speculation ran rampant that this was a big win for infringers–it’s really not! Copyright protection still exists at the moment a work is “fixed”–that is, put into any kind of tangible or distributable form, such as written, recorded, or digitally stored. But for that protection to be enforced by courts, a work must both be registered and have that registration approved. The approval is now very important because you cannot file a lawsuit against someone for infringing your work until you have it, which means demonstrating to the US Copyright Office that the work merits copyright protection. For instance, Alfonso Ribeiro was one of the individuals suiting Epic Games over a Fortnite dance–specifically, his famous (infamous?) Carlton dance from The Fresh Prince of Bel-Air. As the dance consisted of only 3 distinct moves, the US Copyright Office declined to approve his registration, and so he could not continue with any lawsuit against Epic.
It can also take a few months for approval to be granted, during which copyright infringement by another party can continue. The good news is, you can sue for infringement that occurred before your application was granted. This is a point on which many people seem to be confused, so I want to make it clear here. All this decision does is provide additional hurdles for pursuing legal action that must be cleared. It does not affect what remedies a copyright owner can receive nor does it change what is considered infringing or not.
The best thing to do is be proactive and register your works with the US Copyright Office as soon as possible! You may never need to sue anyone for infringement, but to give your work the best protection, this is the most appropriate step to take.