The Supreme Court handed down a unanimous copyright decision in March 2019 with implications for anyone involved in a copyright dispute, as well as for marketers and brands that create and use copyrighted materials. In Fourth Estate Public Benefit Corporationv. Wall Street.com, LLC (Fourth Estate), the Court resolved a long-standing split among the circuits over the requirement to obtain a copyright registration before filing a lawsuit.

The creator of an original work of authorship, such as a photograph, musical composition or screenplay, automatically obtains copyright protection in his or her work, which includes the right to prevent others from reproducing or displaying the work. But under Section 411 of the Copyright Act, a copyright owner may not file an infringement lawsuit until registration of the copyright “has been made” with the Copyright Office. The question in Fourth Estate was: what does “has been made” mean?