Can you file a copyright lawsuit based on a pending copyright application? Also, how long does the Copyright office take to decide registration?...in California
The answer depends on where in the country the copyright infringement lawsuit is filed.
In the states falling within the Tenth and Eleventh Circuits [Florida, Georgia, Alabama, Wyoming, Utah, Colorado, Kansas, New Mexico, Oklahoma] a registration for the copyrights being asserted must already be issued for their owner to even file the lawsuit.
In the states falling within the Fifth, Seventh, and Ninth [look them up, the latter of which, however, includes California] only a complete application to register must be made in order for the copyright owner to file suit.
The other states to my knowledge have no set rule as yet [although it looks like the states in the Fourth Circuit are going to have to follow the registration rule].
The Copyright Office takes about 8 months to register a work once a complete application if filed [longer if the registration is for a group or collection of works or if filed by mail]. There is, however, an expedited process that takes about 10 days and costs [last I checked] about $750.
Note: If this is a real-world and not hypothetical matter, it is VERY important to understand that if the alleged infringement occurred BEFORE registration of the infringed work, then the copyright owner is not entitled to an award of its attorneys' fees or for statutory damages. As a practical matter, that means a copyright litigator will be much less likely to take the case and it will be much more difficult to prove, as an evidentiary matter, the ACTUAL damages suffered by the copyright owner.
Speak with your own intellectual property attorney. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Since you have indicated this is in California, a pending copyright application is sufficient. Mr. Ballard is correct in that the Ninth Circuit, which is the Federal Court covering California and other western states, has found that only an application is necessary for maintaining a copyright infringement case.
Furthermore, it is important to know whether the infringement occurred prior to your filing the application, within three (3) months of filing the application, or more than three (3) months following the filing of your application.
This will change the way you seek damages and whether you are entitled to attorneys' fees from the defendant(s) if you win the case. You may be entitled to statutory damages (up to $30,000 per actionable infringement) or punitive damages (up to $150,000 per actionable infringement). If you filed the application more than three (3) months after the infringement began, you would not be entitled to statutory damages or any punitive damages. You would be limited to actual lost profits or actual profits by the defendant(s). It can be a big difference.
The above answer should not be considered and does not constitute legal advice. You should not rely on any of this advice because each case is fact specific and could be subject to different local, state, and federal laws. No attorney-client relationship exists based on this response.
Maybe. But there are facts of consequence which must be considered by Copyright Litigation Counsel. Do Not File A Lawsuit without guidance from counsel.
My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.
I agree with the prior answers. However, they didn't cover your second question, which was the length of time it takes the USCO to "decide" registration. Technically, the USCO doesn't decide if your work is copyrightable; they will issue a registration if you have complied with all the formalities and rules they require for issuance of a registration, and they let the courts decide if the material you deposited is actually worthy of copyright protection. You can go onto their website and see there are 2 ways to register - expedited and ordinary. Expedited can get your copyright registration issued in about 4-6 weeks I think, but it considerably more expensive ($800 or so versus $35). Ordinary registration was taking 6-10 months last time I checked. Good luck.
In Los Angeles and Orange County, you can file a Federal lawsuit based on a pending copyright application so long as you can show that it has been filed. If the alleged infringement occurred prior to your registration of the infringed work, then you would not be entitled to attorneys' fees or statutory damages. If the infringement occurs after registration then you would be entitled to these damages and fees. Otherwise, you are entitled only to actual damages.
I strongly urge you to consult with a CA copyright attorney as soon as possible to ensure that what you are registering is done correctly and to see what should be done when .. Good luck!
As the other attorney's have mentioned, in California you can file a Copyright Infringement suit based upon a pending copyright application.
17 U.S.C. §411 states "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." Courts have interpreted this requirement differently depending on what area of the country the suit is brought, with some courts requiring registration and others accepting a filed application as satisfying 17 U.S.C. §411. In the case of Cosmetic Ideas, Inc. v. IAC/InteractiveCorp., 606 F.3d 612 (2010), after conducting a thorough analysis of 17 U.S.C. §411, the Ninth Circuit, which includes California, adopted the “application approach,” concluding that “receipt by the Copyright Office of a complete application satisfies the registration requirement of §411(a).”
The Copyright Office takes some time to register a copyright depending on the type. I filed an application for a work of visual art this year and it took less than two months. I also filed an application for a literary work and it took over 6 months.
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