It all depends on where you file the lawsuit. The Supreme Court can end this strange situation by taking a case asking for nationwide uniformity, Fourth Estate Public Benefit Corp. v. Wall-Street.com. Or it may leave us with a checkerboard of conflicting guidance.
The federal copyright act requires registration before you can file. What is “registration”? Some courts define it literally. You need a registration certificate to start the lawsuit. Others courts say it’s enough to just apply for one. Some don’t say. These differences may not sound like much, but registration data show one reason they can be huge.
Imagine you are set to release the best song on the best recording you ever made, and it’s stolen. Before the thieves can put it online and upend your plans, you race to federal court to get an injunction to stop them. You have solid evidence, but no registration.
The latest Copyright Office annual report says it takes 6 to 8 months to process online applications. Paper forms take 8 to 10 months. For $800 you may get a registration in five working days, no guarantees. Normal online applications cost $35.
In San Francisco, Austin, or New Orleans, no problem. You can apply to register and file the lawsuit the same day in most cases. If your court is in Santa Fe, Boulder, or Atlanta, you must get a registration first. It will take at least a week. The “just apply” courts save copyright owners time, money, and irreparable losses.
The rest of the country is worse. In Indianapolis, Chicago, or Madison, both sides can cite cases saying it is, or is not, enough to just apply. In Nashville, Pittsburgh, and New York City, the appeals courts are silent.
Until the Supreme Court imposes one interpretation for the whole country, or Congress changes the law, common sense says you should register any work you feel you might need to enforce in federal court. As soon as you can.