Are New Copyright Registrations Valid?

On May 10, the Trump administration fired Shira Perlmutter, the Register of Copyrights. What followed that firing was (and is) a great deal of chaos and uncertainty.

First, just two days later, two Trump appointees were blocked from entering the United States Copyright Office (USCO). The two men, Paul Perkins and Brian Nieves, claimed to have been appointed to high-level positions at the USCO, a claim confirmed by the Department of Justice.

However, they were still denied access to the building. As of this writing, no one is serving as acting Register of Copyrights.

Shortly after that, Permutter filed a lawsuit arguing that her removal was “unlawful and ineffective.” However, a judge denied Perlmutter a temporary restraining order, stating that she had not proven irreparable harm in the case.

Now, nearly a month later, it’s still unclear who is leading the USCO. While this creates numerous issues for the office, a recent article by Ivan Moreno at Law360 has raised another concern: Recently issued certificates may be challenged on their validity.

The reason? The lack of a signature from the Register of Copyrights.

Is this something for applicants to worry about? Probably not. However, it highlights the importance of the Register of Copyrights, and it is another reason to reconsider the registration requirement.

Understanding The Problem

On the surface, the issue is relatively simple. Since there is no one officially in the Register of Copyrights role, the USCO is printing certificates that do not have the signature of the Register.

This, by itself, likely isn’t a significant problem. Section 410 of Title 17 discusses the requirements for a copyright registration certificate. To that end, there are only four requirements. It must:

1. Contain the information given in the application,
2. The registration number,
3. The effective date of the registration and,
4. The seal of the Copyright Office

Nowhere does the law require the signature of the Register of Copyrights. Since the new certificates have the seal, it would seem that the case is closed.

However, there is a wrinkle.

Though the law doesn’t require the Register’s signature, it does say that a registration should only be created after:

"When, after examination, the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met, the Register shall register the claim."

Justin Hughes, a professor at Loyola Law School in Los Angeles, raised this issue in Moreno’s article. There he said:

"If I were defense counsel and I was sued by anyone who had one of these registrations, I would go into court and say, 'There is no registration here. The registration's infirm.' Why is it infirm? Not because it lacks a signature, [but] because the statute says the register has to determine copyrightability..."

In short, since there is no Register, it’s unclear if these certificates would hold up if challenged.

A Dangerous Technicality

On the surface, this might seem silly. The Register of Copyrights doesn’t individually review every registration. The USCO has a small army of employees to handle such analyses.

But technicalities do, at least sometimes, invalidate copyright registrations. In 2019, the company Fiesta Fabrics lost a copyright case after errantly registering a design as “unpublished” despite having sold 190 yards of the fabric.

However, in February 2022, the Supreme Court held that “good faith” mistakes in a copyright registration do not invalidate it. It would be very difficult to argue that a filer made a “bad faith” mistake because their registration certificate happened to be printed during this time.

However, there’s also the fact that this issue doesn’t involve a problem on the filer’s side. Instead, it’s the USCO that has the issue. These are uncharted waters. To my knowledge, there are no court rulings in this space.

The reason is simple. The USCO has never been in this position before. Unprecedented times lead to legal uncertainties. Unfortunately, it’s the copyright registrants who are paying the price.

Fixing the Problem

The USCO can (and likely will) resolve the problem relatively easily once the leadership issue is addressed. They can issue new registration certificates with the Registrar’s signature.

Given the three-year statute of limitations of copyright infringement lawsuits, it’s unlikely the unsigned certificates would ever be challenged in court. The unsigned certificates would become more of a novelty than a legal concern.

Edit: It was pointed out correctly that the statute of limitations doesn’t have an impact here. The point I was trying to make was that a (hopefully) brief interruption in signed registration shouldn’t have a significant impact on copyright litigation, and I still think that is the case. But I agree this sentence should be stricken.

But why are copyright creators being put in this position? It’s because the United States is unique in that it has a registration requirement at all. While it’s true that copyright attaches to a work once it is created, if you want to file a lawsuit in federal court, you need a copyright registration. To collect statutory damages, the registration must be timely.

I’ve been an open critic of the registration requirement for many years. It’s a system that effectively disenfranchises most content creators and imposes unnecessary obstacles for protection on everyone. It also weakens copyright protection by hinging it on a technicality.

However, at no point in this process had we reached a point where the USCO itself might cause a registration to become invalidated. Although it’s improbable, it’s theoretically possible that a legitimate copyright holder could file an entirely accurate and timely copyright registration and still have it be invalid. All because of when they filed the registration.

This is grossly unfair. It also serves as a reminder that the registration process is both unnecessary and harmful. It’s past time to move on from it.

Bottom Line

In the end, I struggle to envision a court denying someone protection solely because of the absence of a signature on the registration certificate. Courts typically go out of their way to avoid punishing litigants for issues that aren’t their fault.

Furthermore, it’s hard to argue that the USCO acted in bad faith. They’re doing what they can in an extremely difficult environment.

That said, there is no way to be certain. We are in uncharted waters. If I owned one of these certificates, I would be somewhat concerned. This is why I think reissuing the certificates makes sense and is something USCO will likely do.

Still, this is another issue with the registration system. It’s another needless uncertainty for creators at a time when they already face plenty.

Obviously, the more pressing issue is to restore stability to the USCO. However, when that’s done, it may be time to revisit this issue as well.