Creators Take Care: SCOTUS Adjusts the Timing of the Copyright Registration Tango

Copyright-registration-300x169Fortnite is the most popular video game in the world. So popular that it was last year’s highest earning video game, grossing more than $2.4 billion in 2018 alone. So popular, in fact, that its fans successfully convinced Sony to reverse its longstanding policy against cross-platform gaming, thus allowing PlayStation Fortniters to play with their PC, mobile and other console-owning friends. Fortnite is also free.

The gap between “free” and “$2.4 billion” is explained by in-game purchases. Players purchase V-Bucks (e.g., 1,000 V-Bucks currently cost $9.99) and then spend the in-game currency to creatively customize their characters. Players can buy new outfits, different skins to change the look of in-game items, pets to carry around, and most famously, dance moves for their characters to perform called “emotes.” The emotes are a key piece of Fortnite’s popularity and profitability.

Recently, though, the emotes have sparked a number of copyright infringement lawsuits in which Fortnite creator Epic Games has been accused of stealing other people’s dance moves. Last December, rapper 2 Milly sued Epic over an emote called “Swipe It,” which he claims is his “Milly Rock” dance. “The Backpack Kid” has sued Epic over the hip-shaking, arm-swinging dance called “flossing” that all of your nieces and nephews have been doing nonstop for the past year. Alfonso Ribeiro has sued Epic over the “Fresh” emote that resembles his signature “Carlton Dance,” first popularized on TV’s The Fresh Prince of Bel-Air. Other disgruntled dance inventors include rapper BlocBoy JB and Donald Faison, who played Turk on TV’s Scrubs. Everyone and their Dogg seems to be involved.

Earlier this week, Justice Ruth Bader Ginsburg—another pop culture icon—authored the opinion in one of the most anticipated intellectual property cases of the current term. At issue was the interpretation of Section 411(a) of the Copyright Act, which states “no civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.” The question before the Court in Fourth Estate Public Benefit Corporation v., LLC, was whether “registration” under Title 17 occurs when the claimant submits their application to the Copyright Office or only after the Copyright Office reviews the application and comes to a decision.

With little fanfare, the unanimous Court held that under a plain reading of the statute, registration occurs when the Copyright Office registers the copyright. Accordingly, a claimant may not file a copyright infringement suit until the Copyright Office registers the copyright. The Court reasoned that “registration” means “registration,” not “application.”

The claimant’s right to file, however, is not dependent on success at the Copyright Office. For example, even if the Copyright Office refuses the registration, the applicant may still file an infringement suit, provided the applicant also serves the Register of Copyrights with notice and a copy of the complaint. The Register then has discretion whether to join the suit as a party and weigh in on the registrability of the copyright claim. Thus, Alfonso Ribeiro’s infringement suit may continue despite the recent rejection of his copyright application for the “Carlton Dance.” However, the case may now be tougher to make. Epic cited the Copyright Office’s refusal of the “Carlton Dance” application as a defense to Ribeiro’s infringement claim.

Copyright owners of all stripes will want to pay attention. While the rights and protections available for copyrighted works kick in as soon as the work is fixed in a tangible medium of expression, the ability to enforce those rights in court depends on registration. In the past, some circuits have allowed suits to be brought as soon as a copyright application has been filed with the Copyright Office, but those days are now past. After the Supreme Court’s ruling in Fourth Estate, would-be plaintiffs will also need to plan for the current seven-month average processing time for copyright applications.

When it comes to filing copyright applications, better shake your tail feather.

UPDATE: The impact of Monday’s Supreme Court copyright ruling is already being felt. On Thursday, only three days later, several of the infringement suits against Epic Games, including Alfonso Ribeiro’s, were voluntarily withdrawn by the plaintiffs. Depending on the status of individual copyright applications, the cases may be refiled pending the Copyright Office’s registration determinations.


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