13 June 2018
U.S. federal circuit courts currently have a split as to whether copyright registration is completed when a certificate of registration has been issued versus when a completed application has been submitted. In May 2017, the Eleventh Circuit joined the Tenth Circuit in adopting the 'registration' approach to copyright registration, in its Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC case. These circuits have noted that the statutes (17 U.S.C. § 408(a) and 410(a)) use the term 'application' in the same section as 'registration' in a manner representative of something separate and apart from registration, and that the Register’s affirmative acts to 'examine,' 'register,' and then 'issue' the certificate of registration must be accomplished in order to complete registration.
Conversely, the Fifth and Ninth Circuits favor the 'application' approach because a lawsuit may still be brought after an application is rejected. These circuits reason that justice and judicial economy warrant bringing a suit as soon as an application is submitted in order to impede an infringer from diluting a copyright until an official action has been taken.
For more information on the Fourth Estate v. Wall-Street.com case, see http://www.jurisnote.com/Case/four372.pdf.