Collins on Registration Requirements of 17 U.S.C. § 411(a): Reed Elsevier, Inc. v. Muchnick

Before the Supreme Court’s decision in Reed Elsevier, Inc. v. Muchnick, 176 L. Ed. 2d 18 (U.S. 2010), 17 USCS § 411(a)’s registration requirement had been widely regarded as "jurisdictional." In Muchnick, the Supreme Court clarified that this registration requirement is not "jurisdictional" but is, rather, a "claim processing" requirement. In this Analysis, Catriona M. Collins discusses Muchnick and the long term implications of this ruling. She writes:

[T]he Supreme Court concluded that § 411 did not clearly state that the registration requirement was jurisdictional. Moreover the Court reasoned that the fact that the last sentence of § 411 includes a reference to “jurisdiction” did not undermine this conclusion. The sentence provides that the Registrar of Copyrights may become a party to the copyright infringement action with respect to “the issue of registrability of the copyright claim” but that “the Registrar's failure to become a party shall not deprive the court of jurisdiction to determine that issue.” The Court noted that the reference to “jurisdiction” in this last sentence refers to the power of the court to adjudicate the issue of registrability and says nothing about whether a court has subject matter jurisdiction over claims of infringement of unregistered works. As further support for its conclusion that the registration requirement of § 411(a) is not jurisdictional the Court noted that § 411(a)'s registration requirement, like Title VII's numerosity requirement, is located in a provision which is separate from those granting subject matter jurisdiction over the copyright claims, 28 U.S.C. §§ 1331 and 1338.

     The Court also found support for its conclusion in the fact that § 411(a) expressly allows courts to adjudicate infringement claims involving unregistered works in three circumstances, namely, where the work is not a United States work, where the infringement claim concerns rights of attribution and integrity under 17 U.S.C.S. § 106A, or where the holder attempted to register the work and registration was refused. In addition, § 411(c) permits courts to adjudicate infringement actions over certain kinds of unregistered works where the author declares an intention to secure copyright in the work and makes registration for the work, if required by § 411(a), within three months after the work's first transmission. 17 U.S.C.S. § 411(c)(1)-(2). The Court noted that it would be “at least unusual” to ascribe jurisdictional significance to a condition subject to these kinds of exceptions.

     . . . .

     The Supreme Court's decision serves to facilitate class action settlements that include unregistered works, which obviously benefits both publishers and authors. As a practical matter, many authors do not register their works with the Copyright Office because of the cost and administrative burdens. But the Supreme Court's decision is likely to have repercussions beyond the arena of class actions and calls into question whether it is always necessary for a copyright owner to register his work before filing a copyright infringement suit. The Court expressly declined to address whether § 411(a)'s registration requirement is a mandatory precondition to suit that district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works, leaving this an open issue. There are also important legal consequences flowing from the fact the registration requirement can no longer be viewed as jurisdictional.

(citations omitted)

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