Registration Approach Wins a Round in the Suit Filing Timing Debate

Can a copyright holder file a civil action for copyright infringement if it has filed a copyright registration application (Application Approach) or must the copyright holder wait until the Copyright Office has made a decision on the registration application (Registration Approach.)?

Music creator Asche & Spencer (Asche) discovered that the hosts of the web series “Reluctantly Healthy” used a number of Asche’s works without obtaining a license from Asche.  Asche filed a copyright registration application for the allegedly infringed works.  Asche sued Reluctantly Healthy’s hosts, Principato-Young Entertainment, Inc., Kids At Play, LLC, and Electus, LLC, for copyright infringement before receiving a response to its registration application from the Copyright Office.  The defendants brought a motion to dismiss. 

The district court noted that its circuit, the Eight Circuit, has not determined whether the Application Approach or the Registration Approach should apply.  The Fifth, Seventh, and Ninth Circuits have adopted the Application Approach, while the Tenth and Eleventh Circuits have adopted the Registration Approach.  The district court decided that the Registration Approach is more consistent with the relevant statutory language and dismissed Asche’s complaint.

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No Copyright Infringement for Photos Registered After Suit Filed

Louis Psihoyos is a professional photographer.  John Wiley & Sons, Inc. is a textbook publisher.  Wiley discovered that it published some of Psihoyos’ photos in its textbooks without a license from Psihoyos.  Wiley requested licenses from Psihoyos after the fact.  Psihoyos sued Wiley for infringing the copyrights on eight photos.  Although Psihoyos won the case overall, some of the photos he alleged were infringed were excluded from consideration by the jury.

This case emphasizes the importance of making sure that the infringed works are registered before the complaint is filed, making sure that the infringed works identified in the complaint are the works that were actually infringed and making sure that the registration certificates provided to the court by the copyright owner are for the works that were actually infringed.

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