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8 IP Theory 1 (2018-2019)

handle is hein.journals/ipthey8 and id is 1 raw text is: Registration is Fundamental NICOLE E. POTTINGER* & BRIAN L. FRYET ABSTRACT Under the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office has been made or has been refused. The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is made when a claimant files a registration application or when the Copyright Office registers the claim. This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright Office recently began publishing the opinions of Copyright Office Review Board. This article uses those administrative opinions to show how the Copyright Office has developed the concepts of originality and creativity in ways that are helpful to the federal courts. It concludes with an Appendix listing the Copyright Office Review Board opinions addressing originality and explaining the basis for each decision. INTRODUCTION In the United States, copyright ownership has always involved registration. Initially, it required registration with a district court. Later, it required registration with the Copyright Office. Eventually, registration became largely optional. Today, copyright ownership does not require registration at all. But registration is still important, at least in part because it is a prerequisite for filing a copyright infringement action. And yet, it is surprisingly unclear when registration actually occurs. Some circuits have held that registration occurs when the Copyright Office decides whether to register a work or reject the registration application. But others have held that a work is registered as soon as the copyright owner files a registration application. The former rely primarily on the text of the Copyright Act, and the latter rely primarily on the unfairness of making the copyright owner wait for the Copyright Office to act. On June 28, 2018, the United States Supreme Court granted certiorari in Fourth Estate v. Wall-Street.com, in order to resolve the disagreement.1 The Court will probably conclude that registration occurs when the Copyright Office either registers or refuses to register a copyright claim. After all, the Copyright Act provides that * Candidate for J.D. 2019, University of Kentucky College of Law; B.A. Centre College, 2016. Spears-Gilbert Associate Professor of Law, University of Kentucky College of Law. J.D., New York University School of Law, 2005; M.F.A., San Francisco Art Institute, 1997; B.A, University of California, Berkeley, 1995. ' Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 2018 WL 3148286, at *1 (U.S. June 28, 2018).

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