Copyrights - 17 USC Section 411

01/19/04

Sec. 411. Registration and infringement actions

(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), no action for infringement of the copyright in any
United States work shall be instituted until 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 an 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) 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 506 and sections 509 and 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.

HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
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.
AMENDMENTS
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, Sec. 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, Sec. 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, Sec. 9(b)(1)(C), substituted
"work, if required by subsection (a)," for "work".
EFFECTIVE DATE OF 1990 AMENDMENT
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.
EFFECTIVE DATE OF 1988 AMENDMENT
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.

Last modified: April 19, 2006