Why You Must Register Before Suing: Copyright Registration and Section 411

Last updated: November 2026

A copyright infringement lawsuit over a United States work cannot be filed until the Copyright Office has registered the work or refused to register it. (17 U.S.C. § 411(a).) Filing the application is not enough; the Supreme Court held in 2019 that registration "has been made" only when the Register acts. (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (2019) 586 U.S. 296, 139 S.Ct. 881, 886-887.) Kolmogorov Law, P.C. manages registration and timing for Orange County, Los Angeles, and other California businesses preparing to sue.

Call (909) 235-6116 or contact us online if you are considering a copyright claim and have not yet registered.

What Section 411 requires

Copyright exists from the moment a work is fixed. Registration is optional for ownership. It is mandatory for enforcement. The statute provides that no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the claim has been made. (17 U.S.C. § 411(a).) The same section adds an exception. If the application, deposit, and fee were delivered in proper form and the Office refused registration, the applicant may sue anyway. Notice and a copy of the complaint must then be served on the Register of Copyrights. (17 U.S.C. § 411(a).)

The rule applies to United States works. Foreign works are exempt from the requirement, though registration still affects the remedies available to their owners.

The Fourth Estate rule

For years the circuits split over whether submitting a complete application satisfied the statute. The Ninth Circuit, which covers California, had followed the application approach. The Supreme Court ended the split, holding that registration occurs, and an infringement suit may be commenced, when the Copyright Office registers the copyright, not when the owner applies. (Fourth Estate, 139 S.Ct. at pp. 886-887, 892.)

The Court also confirmed what the rule does not do. Once registration issues, the owner may recover for infringement that occurred both before and after registration. (Fourth Estate, 139 S.Ct. at p. 887.) An owner whose work was copied before it applied is not barred from recovering for that copying. It simply has to wait for the Office's decision before filing.

What the wait costs

Ordinary processing takes months. The Copyright Office offers expedited handling, called special handling, for an additional fee where litigation is pending or prospective, and it attempts to act on those applications within days rather than months. We use it in nearly every case that requires registration before filing, because the alternative is a complaint that gets dismissed.

The wait interacts with two deadlines. The limitations period is three years from accrual of the claim. (17 U.S.C. § 507(b).) A business that discovers copying late and then waits months for an ordinary registration can lose part of its recovery. And a business that needs a preliminary injunction cannot even file the motion until it can file the complaint, which is why special handling matters most when a competitor is actively using the work.

Timing and the remedies

Section 411 governs whether you can sue. Section 412 governs what you can recover. No statutory damages or attorney fees may be awarded for infringement of an unpublished work that commenced before its registration. The same is true of a published work when the infringement commenced after publication and before registration, unless the registration was made within three months after first publication. (17 U.S.C. § 412.) An owner who registers only after discovering the copying can still sue, but against that copier it is limited to actual damages and profits. Our page on statutory damages and attorney fees explains the difference in dollars.

A timely certificate carries one more benefit. A registration made before or within five years after first publication is prima facie evidence of the validity of the copyright and of the facts stated in the certificate. (17 U.S.C. § 410(c).) That shifts the burden to the defendant to disprove ownership and originality.

What happens if you file without registering

The defendant moves to dismiss, and courts generally grant the motion. Because Section 411(a) is a precondition to suit rather than a limit on the court's jurisdiction, some courts allow the plaintiff to amend once registration issues, and others dismiss without prejudice to refiling. Either way the plaintiff has paid for two rounds of pleading and handed the defendant a reason to doubt the rest of the case. A defendant should check the registration date on every copyright complaint it receives; a complaint filed on a pending application is vulnerable.

How we handle copyright registration before a lawsuit

We confirm ownership and the chain of title first, because an application filed in the wrong name creates a defect the other side will exploit. We identify every work at issue and decide whether to register them individually or as a group. We file with special handling when a deadline or an injunction is in play, and we prepare the complaint in parallel so that it goes on file the day the certificate issues. Our existing copyright registration guide covers the application mechanics, and our copyright case study shows the sequence in a business dispute. The resulting case is filed in the Central District of California, in Santa Ana or Los Angeles.

What to bring to the first meeting

Bring the work in the form you will deposit with the Copyright Office, with its creation and first publication dates. Bring any existing certificates or application confirmations. Bring the contracts with the people who created the work, so that we can confirm who the claimant should be. Bring your evidence of the copying and the date you discovered it. Our pages on the elements of infringement and copied website content cover what comes next.

Frequently asked questions

Do I need to register my copyright before suing?

Yes, for a United States work. No infringement action may be instituted until the Copyright Office has registered the claim or refused it. (17 U.S.C. § 411(a).) A pending application is not enough under the Supreme Court's decision in Fourth Estate. Once registered, you can recover for infringement that happened before registration.

What is the Fourth Estate rule?

The Supreme Court's 2019 holding that registration "has been made" under Section 411(a) when the Copyright Office registers the copyright after examining the application, not when the owner submits the application. (Fourth Estate, 139 S.Ct. at p. 892.) It resolved a circuit split and overruled the Ninth Circuit's earlier application approach.

How long does copyright registration take before I can sue?

Ordinary processing takes months. The Copyright Office offers special handling for pending or prospective litigation, for an additional fee, and attempts to act on those applications within a few working days. If a competitor is actively using your work, special handling is usually the right choice.

Can I sue if the Copyright Office refuses my registration?

Yes. If the application, deposit, and fee were delivered in proper form and registration was refused, you may file suit, provided you serve notice and a copy of the complaint on the Register of Copyrights. (17 U.S.C. § 411(a).) The Register may join the case on the question of registrability.

Does late registration limit my damages?

Yes. Statutory damages and attorney fees are unavailable for infringement that began before registration, unless the work was registered within three months after first publication. (17 U.S.C. § 412.) You can still recover actual damages and the infringer's profits and obtain an injunction. (17 U.S.C. § 504(b).)

Talk to a California copyright litigation attorney

If you need to register and sue, or you have been sued on a work that was not registered, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. See also our intellectual property litigation page.

This page provides general information about federal copyright law and is not legal advice. Outcomes depend on the registration record, the dates of the infringement, and the court.