It’s a common scenario: your client comes to you, furious that someone has copied his original work, and demanding that you immediately file an infringement suit. The only problem? He never registered his work with the United States Copyright Office. So, you suggest he immediately file an application, but due to heavy volume, the Copyright Office likely will not process the application for at least a year. Is a pending application enough to pursue an infringement claim or is a registration certificate required? The district courts within the Third Circuit have differed on this issue, and while current case law suggests that there is a trend toward requiring a registration for an infringement suit, there are courts within the Circuit that have held a pending application will suffice.
Section 411(a) of the United States Copyright Act 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.” See also Reed Elsevier v. Muchnick, 559 U.S. 154, 157 (2010) (holding that failure to register a copyright does not strip a federal court of jurisdiction over infringement claims, but declining to “decide whether §411(a)’s registration requirement is a mandatory precondition to suit”).
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