(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),1 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. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.
(b)(1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
(2) In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.
(3) Nothing in this subsection shall affect any rights, obligations, or requirements of a person related to information contained in a registration certificate, except for the institution of and remedies in infringement actions under this section and section 412.
(c) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 through 505 and section 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner—
(1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and
(2) makes registration for the work, if required by subsection (a), within three months after its first transmission.
(Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2583; Pub. L. 100–568, §9(b)(1), Oct. 31, 1988, 102 Stat. 2859; Pub. L. 101–650, title VI, §606(c)(1), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 105–80, §6, Nov. 13, 1997, 111 Stat. 1532; Pub. L. 105–304, title I, §102(d), Oct. 28, 1998, 112 Stat. 2863; Pub. L. 109–9, title I, §104(b), Apr. 27, 2005, 119 Stat. 222; Pub. L. 110–403, title I, §101(a), title II, §209(a)(6), Oct. 13, 2008, 122 Stat. 4257, 4264.)
The first sentence of section 411(a) restates the present statutory requirement that registration must be made before a suit for copyright infringement is instituted. Under the bill, as under the law now in effect, a copyright owner who has not registered his claim can have a valid cause of action against someone who has infringed his copyright, but he cannot enforce his rights in the courts until he has made registration.
The second and third sentences of section 411(a) would alter the present law as interpreted in Vacheron & Constantin-Le Coultre Watches, Inc. v. Benrus Watch Co., 260 F.2d 637 (2d Cir. 1958). That case requires an applicant, who has sought registration and has been refused, to bring an action against the Register of Copyrights to compel the issuance of a certificate, before suit can be brought against an infringer. Under section 411, a rejected claimant who has properly applied for registration may maintain an infringement suit if notice of it is served on the Register of Copyrights. The Register is authorized, though not required, to enter the suit within 60 days; the Register would be a party on the issue of registrability only, and a failure by the Register to join the action would “not deprive the court of jurisdiction to determine that issue.”
Section 411(b) is intended to deal with the special situation presented by works that are being transmitted “live” at the same time they are being fixed in tangible form for the first time. Under certain circumstances, where the infringer has been given advance notice, an injunction could be obtained to prevent the unauthorized use of the material included in the “live” transmission.
Subsection (b), referred to in subsec. (a), was redesignated subsec. (c) of this section by Pub. L. 110–403, title I, §101(a)(3), Oct. 13, 2008, 122 Stat. 4257.
2008—Pub. L. 110–403, §101(a)(1), inserted “civil” before “infringement” in section catchline.
Subsec. (a). Pub. L. 110–403, §101(a)(2), substituted “no civil action” for “no action” in first sentence and “a civil action” for “an action” in second sentence.
Subsec. (b). Pub. L. 110–403, §209(a)(6), which directed amendment of subsec. (b) by substituting “section 510” for “sections 509 and 510”, could not be executed because of prior amendment by Pub. L. 110–403, §101(a)(3), (4). See below.
Pub. L. 110–403, §101(a)(5), added subsec. (b). Former subsec. (b) redesignated (c).
Subsec. (c). Pub. L. 110–403, §101(a)(4), substituted “505 and section” for “506 and sections 509 and” in introductory provisions.
Pub. L. 110–403, §101(a)(3), redesignated subsec. (b) as (c).
2005—Subsec. (a). Pub. L. 109–9 inserted “preregistration or” after “shall be instituted until”.
1998—Subsec. (a). Pub. L. 105–304, in first sentence, struck out “actions for infringement of copyright in Berne Convention works whose country of origin is not the United States and” after “Except for” and inserted “United States” after “copyright in any”.
1997—Subsec. (b)(1). Pub. L. 105–80 amended par. (1) generally. Prior to amendment, par. (1) read as follows: “serves notice upon the infringer, not less than ten or more than thirty days before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and”.
1990—Subsec. (a). Pub. L. 101–650 inserted “and an action brought for a violation of the rights of the author under section 106A(a)” after “United States”.
1988—Pub. L. 100–568, §9(b)(1)(A), substituted “Registration and infringement actions” for “Registration as prerequisite to infringement suit” in section catchline.
Subsec. (a). Pub. L. 100–568, §9(b)(1)(B), substituted “Except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and subject” for “Subject”.
Subsec. (b)(2). Pub. L. 100–568, §9(b)(1)(C), substituted “work, if required by subsection (a),” for “work”.
Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title.
Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title.
1 See References in Text note below.