FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COSMETIC IDEAS, INC., a California
corporation, doing business as
SWEET ROMANCE JEWELRY
MANUFACTURING,
Plaintiff-Appellant,
No. 08-56079
v.
D.C. No.
IAC/INTERACTIVECORP, a Delaware DV-08-2074 (R)
corporation; HOME SHOPPING (RZx)
NETWORK, INC., a Delaware
OPINION
corporation; HSN LP, a Delaware
limited partnership; HSN GENERAL
PARTNER LLC, a Delaware limited
liability company,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel Real, District Judge, Presiding
Argued and Submitted October 6, 2009
Withdrawn October 19, 2009
Resubmitted April 27, 2010
Pasadena, California
Filed May 25, 2010
Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and David G. Trager,* District Judge.
*The Honorable David G. Trager, United States District Judge for the
Eastern District of New York, sitting by designation.
7469
7470 COSMETIC IDEAS v. IAC/INTERACTIVECORP
Opinion by Judge Trager
7472 COSMETIC IDEAS v. IAC/INTERACTIVECORP
COUNSEL
Evan S. Cohen and S. Martin Keleti, Los Angeles, California,
for plaintiff-appellant Cosmetic Ideas, Inc.
Edward T. Colbert, William H. Merone, and Erik C. Kane,
Washington, DC, and Vicki E. Land, Los Angeles, California,
for defendants-appellees HSN LP, IAC/InterActiveCorp,
Home Shopping Network, Inc. and HSN General Partner
LLC.
OPINION
TRAGER, District Judge:
Plaintiff-Appellant Cosmetic Ideas, Inc. (“Cosmetic”)
appeals the decision of the United States District Court for the
Central District of California (“district court”) dismissing its
claims against Defendants-Appellees IAC/InteractiveCorp,
Home Shopping Network, Inc., HSN LP, and HSN General
Partner LLC (collectively, “HSN”) for lack of subject-matter
jurisdiction. The district court determined that Cosmetic failed
to comply with the registration requirement of 17 U.S.C.
§ 411(a), which makes registration of a copyright a prerequi-
site to bringing an infringement suit, then concluded that lack
of registration deprived it of jurisdiction. Cosmetic contends
that it complied with § 411(a), because it submitted a com-
pleted registration application to the Copyright Office before
instituting its infringement action. HSN argues that registra-
tion occurs only after the Copyright Office has affirmatively
granted a registration.
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7473
Background
(1)
In 1997, Cosmetic, doing business as Sweet Romance Jew-
elry Manufacturing, created a piece of costume jewelry
known as the “Lady Caroline Lorgnette” (“the necklace”).
Cosmetic began manufacturing and selling copies of the neck-
lace in 1999, and continues to manufacture and sell copies
through various stores and websites. Cosmetic claims that
sometime between 2005 and 2008, HSN began manufacturing
and distributing copies of a “virtually identical” necklace.
On March 6, 2008, Cosmetic submitted an application to
the Copyright Office for registration of its copyright in the
necklace, and received confirmation of receipt of the applica-
tion on March 12, 2008. On March 27, 2008, Cosmetic filed
a complaint alleging that HSN had infringed on Cosmetic’s
copyright in the necklace. Although the Copyright Office ulti-
mately issued Cosmetic a registration certificate for its copy-
right in the necklace, it did not do so before Cosmetic filed
its complaint.1
On June 2, 2008, HSN filed a motion to dismiss for failure
to state a claim and lack of subject-matter jurisdiction. HSN
argued that Cosmetic did not possess a valid copyright regis-
tration when it commenced its action, and thus the court
lacked subject-matter jurisdiction over the claim of copyright
infringement. On June 17, 2008, the district court granted the
motion to dismiss on the basis that it lacked subject-matter
jurisdiction. Cosmetic timely appealed.
1
At oral argument and in supplemental briefing, Cosmetic confirmed
that it has now received a registration certificate and has filed a new
infringement action against HSN, which has been stayed pending the out-
come of this appeal. See Cosmetic Ideas, Inc. v. HSN, Inc., CV-09-01215
(R) (RZx), Doc. No. 29 (C.D. Cal. May 18, 2009).
7474 COSMETIC IDEAS v. IAC/INTERACTIVECORP
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse.
(2)
The district court’s dismissal for lack of subject-matter
jurisdiction is reviewed de novo. Rattlesnake Coal v. U.S.
EPA, 509 F.3d 1095, 1100 (9th Cir. 2007). In this case, the
district court’s decision to dismiss was necessarily—though
without discussion—based on its interpretation of the Copy-
right Act, 17 U.S.C. § 101 et seq. (2006). Questions of statu-
tory interpretation are reviewed de novo. Mollison v. United
States, 568 F.3d 1073, 1075 (9th Cir. 2009).
Discussion
(1)
[1] We first address HSN’s argument that § 411(a)’s regis-
tration requirement—which mandates that a copyrighted work
be registered before an infringement action can be brought—
is a jurisdictional prerequisite to suit. In Reed Elsevier, Inc. v.
Muchnick, ___ U.S. ___, 130 S. Ct. 1237 (2010), the Supreme
Court held otherwise.2 Specifically, Reed Elsevier held that,
although “[s]ection 411(a)’s registration requirement is a pre-
condition to filing a claim,” it “does not restrict a federal
court’s subject-matter jurisdiction.” 130 S. Ct. at 1241. There-
fore, the district court’s dismissal of Cosmetic’s complaint on
the basis of lack of subject-matter jurisdiction—which must
have been predicated on a conclusion that Cosmetic had not
registered its copyright—was error.
2
Reed Elsevier was pending before the Supreme Court at the time of the
October 6, 2009 oral argument in this case. Submission was withdrawn on
October 19, 2009, pending the Supreme Court’s opinion. Reed Elsevier
was handed down on March 2, 2010, and the parties have both filed briefs
at this Court’s direction discussing the effect of that case here. This case
was resubmitted for decision on April 27, 2010.
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7475
(2)
However, this conclusion does not end our inquiry, as the
district court still may have correctly dismissed the suit on
another basis. This court “may affirm the district court on any
ground supported by the record, even if the ground is not
relied on by the district court.” Charley’s Taxi Radio Dispatch
Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 874 (9th Cir.
1987). Below, HSN moved to dismiss the complaint for fail-
ure to state a claim, pursuant to Federal Rule of Civil Proce-
dure 12(b)(6). Specifically, HSN argued that Cosmetic failed
to register the necklace, and post-Reed Elsevier, registration
is an element of an infringement claim, rather than a jurisdic-
tional bar.
[2] Thus, we are asked to answer the question: What does
it mean to “register” a copyrighted work? Stated another way,
is a copyright registered at the time the copyright holder’s
application is received by the Copyright Office (the “applica-
tion approach”), or at the time that the Office acts on the
application and issues a certificate of registration (the “regis-
tration approach”)?3 Our sister circuits have split in answering
this question.4 For instance, the Fifth and Seventh Circuits
3
The Tenth Circuit appears to have coined the terms “application
approach” and “registration approach” in describing the two schools of
thought. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416
F.3d 1195, 1202-04 (10th Cir. 2005), abrogated in part by Reed Elsevier,
130 S. Ct. at 1243 & n.2.
4
The district courts are also split, sometimes even within the same cir-
cuit. District courts adopting the application approach include: Tri-Mktg.,
Inc. v. Mainstream Mktg. Servs., Inc., No. CV-09-13, 2009 WL 1408741,
at *3 (D. Minn. May 19, 2009); Precision Automation, Inc. v. Technical
Servs., Inc., 628 F. Supp. 2d 1244, 1248 (D. Or. 2008); Prunté v. Univer-
sal Music Group, 484 F. Supp. 2d 32, 39-40 (D.D.C. 2007); Phoenix Ren-
ovation Corp. v. Rodriguez, 403 F. Supp. 2d 510, 514-15 (E.D. Va. 2005);
Iconbazaar, L.L.C. v. America Online, Inc., 308 F. Supp. 2d 630, 633-34
(M.D.N.C. 2004); Forasté v. Brown Univ., 248 F. Supp. 2d 71, 77-78
(D.R.I. 2003); Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 210 F.
7476 COSMETIC IDEAS v. IAC/INTERACTIVECORP
have adopted the application approach. Apple Barrel Prods.,
Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); Chicago
Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.
2003). The Tenth and Eleventh Circuits have adopted the reg-
istration approach. La Resolana, 416 F.3d at 1202-04; M.G.B.
Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1489
(11th Cir. 1990), abrogated in part by Reed Elsevier, 120 S.
Ct. at 1243 & n.2.
We now turn to this issue.5
Supp. 2d 147, 157 (E.D.N.Y. 2002), aff’d, 354 F.3d 112 (2d Cir. 2003);
Dielsi v. Falk, 916 F. Supp. 985, 994 n.6 (C.D. Cal. 1996); Havens v. Time
Warner, Inc., 896 F. Supp. 141, 142-43 (S.D.N.Y. 1995); Sebastian Int’l,
Inc. v. Consumer Contact (PTY) Ltd., 664 F. Supp. 909, 912 (D.N.J.
1987), vacated on other grounds, 847 F.2d 1093 (3d. Cir. 1988).
District courts that adhere to the registration approach include: Specific
Software Solutions, LLC v. Inst. of Workcomp Advisors, 615 F. Supp. 2d
708, 715-16 (M.D. Tenn. 2009); Just Water Heaters, Inc. v. Affordable
Water Heaters and Plumbing, Inc., No. C-05-4996, 2006 WL 449136, at
*3 (N.D. Cal. Feb. 23, 2006); Mays & Assocs., Inc. v. Euler, 370 F. Supp.
2d 362, 370 (D. Md. 2005); Corbis Corp. v. Amazon.com, Inc., 351 F.
Supp. 2d 1090, 1112 (W.D. Wash. 2004); Loree Rodkin Mgmt. Corp. v.
Ross-Simons, Inc., 315 F. Supp. 2d 1053, 1056-57 (C.D. Cal. 2004); Cor-
bis Corp. v. UGO Networks, Inc., 322 F. Supp. 2d 520, 521-22 (S.D.N.Y.
2004); Strategy Source, Inc. v. Lee, 233 F. Supp. 2d 1, 3-4 (D.D.C. 2002);
Brush Creek Media, Inc. v. Boujaklian, No. C-02-3491, 2002 WL
1906620, at *4 (N.D. Cal. Aug. 19, 2002); Gerig v. Krause Publ’ns, Inc.,
33 F. Supp. 2d 1304, 1306 (D. Kan. 1999); Ryan v. Carl Corp., No. C-97-
3873, 1998 WL 320817, at *3 (N.D. Cal. June 15, 1998); Kregos v. Asso-
ciated Press, 795 F. Supp. 1325, 1331 (S.D.N.Y. 1992), aff’d, 3 F.3d 656
(2d Cir. 1993); Demetriades v. Kaufmann, 680 F. Supp. 658, 661
(S.D.N.Y. 1988).
Many of these cases have been abrogated, in part, by the Supreme
Court’s decision in Reed Elsevier, 130 S. Ct. at 1243 & n.2.
5
Although we addressed a similar issue in Roth Greeting Cards v.
United Card Co., that opinion does not control the outcome here, because
it construed the language of the Copyright Act of 1909 (“1909 Act”),
which has since been substantially amended. See 429 F.2d 1106, 1108-09
(9th Cir. 1970) (holding that under the 1909 Act, a plaintiff could maintain
his action the day he fully complied with the registration requirements by
mailing in a revised application, and that the revised application’s filing
date related back to the original application).
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7477
A
We first note that, according to the representations of Cos-
metic at oral argument and in subsequent briefing, the Copy-
right Office has now acted on Cosmetic’s application and
issued a certificate of registration of copyright in the necklace.
Once a certificate is issued, the registration dates back to the
date of application. 17 U.S.C. § 410(d). Thus, Cosmetic can
now allege the registration element of an infringement claim,
irrespective of whether registration accrues at application or
issuance. Nonetheless, we address the issue of the point at
which a work is registered because it is an unsettled issue of
law in this Circuit, and because it is an issue “capable of repe-
tition yet evading review” if the Copyright Office acts on the
application during litigation. See Gerstein v. Pugh, 420 U.S.
103, 110 n.11 (1975) (citing Sosna v. Iowa, 419 U.S. 393, 402
n.11 (1975)); United States v. Brandau, 578 F.3d 1064, 1067
(9th Cir. 2009).
B
[3] In interpreting a statutory provision, we begin with the
plain language of the statute. See K & N Eng’g, Inc. v. Bulat,
510 F.3d 1079, 1081 (9th Cir. 2007). Section 411(a) of the
Copyright Act of 1976 (the “Act” or “1976 Act”) provides, in
relevant part: “[N]o civil action for infringement of the copy-
right in any United States work shall be instituted until pre-
registration or registration of the copyright claim has been
made in accordance with this title.”6 17 U.S.C. § 411(a).
“Registration” is unhelpfully defined as “a registration of a
claim in the original or the renewed and extended term of
copyright.” 17 U.S.C. § 101.
6
Preregistration is allowed only for certain commercial works within
categories that the Register of Copyrights has determined to have a history
of infringement prior to commercial release, and is not applicable to the
work in question here. See 17 U.S.C. § 408(f); 37 C.F.R. § 202.16(c)
(2008).
7478 COSMETIC IDEAS v. IAC/INTERACTIVECORP
Because the clause at issue gives no guidance in interpret-
ing the meaning of “registration,” we turn to the language of
the statute as a whole to determine the intended meaning. See
United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir.
2009) (“While the starting point is always the language of the
statute itself . . . [r]ather than focusing just on the word or
phrase at issue, this court looks to the entire statute to deter-
mine . . . intent.” (internal quotation marks and citations omit-
ted)). An examination of the statutory language here,
however, reveals ambiguity that leaves us no closer to deter-
mining which interpretation to adopt.
[4] Looking to the Act as a whole, copyright registration
is addressed in five consecutive sections: §§ 408 through 412.
Two subsections of the Act, § 410(a) and portions of § 411(a),
contain language that suggests that registration requires some
affirmative steps to be taken by the Copyright Office. Section
410(a) details the role of the Register of Copyrights (“the
Register”):
When, after examination, the Register of Copyrights
determines that, in accordance with the provisions of
this title, the material deposited constitutes copy-
rightable subject matter and that the other legal and
formal requirements of this title have been met, the
Register shall register the claim and issue to the
applicant a certificate of registration under the seal
of the Copyright Office.
17 U.S.C. § 410(a) (emphasis added). This provision places
an active burden of examination and registration upon the
Register, suggesting that registration is not accomplished by
application alone. See, e.g., Loree Rodkin, 315 F. Supp. 2d at
1055 (reading the provision in this way). But see Iconbazaar,
308 F. Supp. 2d at 634 (pointing out that this section “could
be read to apply only to the requirements for issuance of a
registration certificate, not to the requirements for instituting
an action for infringement”).
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7479
The latter portion of § 411(a) can be read similarly. The
portion of § 411(a) setting forth the registration requirement
is followed by an exception:
In any case, however, where the deposit, application,
and fee required for registration have been delivered
to the Copyright Office in proper form and registra-
tion 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.
17 U.S.C. § 411(a) (emphasis added). Because registration in
this subsection is juxtaposed with the separate act of deliver-
ing the necessary application materials to the Copyright
Office, this subsection could be read to mean that Congress
intended registration to require acceptance or refusal by the
Register, not mere delivery. See, e.g., Strategy Source, 233 F.
Supp. 2d at 3-4; Loree Rodkin, 315 F. Supp. 2d at 1055-56.
[5] Other sections of the Act, however, cast doubt on this
interpretation. In particular, § 408 blurs the line between
application and registration and favors the application
approach. In setting forth the permissive registration require-
ments, § 408 states: “[T]he owner of copyright or of any
exclusive right in the work may obtain registration . . . by
delivering to the Copyright Office the deposit specified by
this section, together with the application and fee specified
. . . .” 17 U.S.C. § 408(a) (emphasis added). This section
implies that the sole requirement for obtaining registration is
delivery of the appropriate documents and fee. See Prunté,
484 F. Supp. 2d at 40 (concurring in this analysis and adopt-
ing the application approach); Iconbazaar, 308 F. Supp. 2d at
634 (same); but see Ryan, 1998 WL 320817, at *3 (adopting
the registration approach and concluding that § 408(a) means
“merely that the delivery of the application is a step the appli-
7480 COSMETIC IDEAS v. IAC/INTERACTIVECORP
cant must take, not that delivery is sufficient by itself to
obtain a registration”).7
One final relevant subsection of the Act, § 410(d), could be
read as supporting either the application or registration
approach. Section 410(d) provides: “The effective date of a
copyright registration is the day on which an application,
deposit, and fee, which are later determined by the Register
of Copyrights or by a court of competent jurisdiction to be
acceptable for registration, have all been received in the
Copyright Office.” 17 U.S.C. § 410(d). Because this subsec-
tion dates a later-approved registration as of the date of its
application, it supports the interpretation that application is
the critical event. See, e.g., Dielsi, 916 F. Supp. at 994 n.6;
Prunté, 484 F. Supp. 2d at 40. However, because this back-
dating does not occur until after the Copyright Office or a
court has deemed the registration acceptable, the statute could
be read to require action by the Register to effect registration.
See, e.g., La Resolana, 416 F.3d at 1204 n.9 (“It is not logical
to assume that the relation-back provision subsumes the
explicit requirements of § 411 and § 410(a).”); Ryan, 1998
WL 320817, at *2; Brush Creek, 2002 WL 1906620, at *3-4.
[6] We are not persuaded that the plain language of the Act
unequivocally supports either the registration or application
approach. Although in some places the Act seems to equate
registration with affirmative approval by the Copyright
Office, in others the Act suggests registration is accomplished
by completing the process of submitting an application. This
7
The Tenth Circuit read § 408(a) to support the registration approach by
positing that “may,” as used in that section, indicates that registration
requires review. See La Resolana, 416 F.3d at 1201 (“This provision . . .
envisions substantive review of the material by the Register of Copyrights.
If it were otherwise, the verb would be ‘shall obtain’ instead of ‘may
obtain.’ ” (internal quotation marks omitted)). But the word “may,” as
used here, is better read to indicate that registration is now permissive,
especially as the subsection is entitled “Registration Permissive”; if “shall
obtain” were used, it would create a mandatory registration requirement.
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7481
ambiguity makes it necessary to go beyond the Act’s plain
language to determine which approach better carries out the
purpose of the statute.
C
When statutory language proves unclear, we work to dis-
cern its meaning by looking to “the broader context of the
statute as a whole” and the purpose of the statute. See United
States v. Olander, 572 F.3d 764, 768 (9th Cir. 2009) (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). An
understanding of the history of § 411 is helpful in discerning
the statute’s purpose. Section 411 is a product of the 1976
Act, which drastically amended the 1909 Act. See Pub. L. No.
94-553, 90 Stat. 2541 (1976); see also H.R. Rep. No. 94-
1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,
5745. Under the 1909 Act, federal copyright protection
attached only upon publication, and even then, only if proper
notice, registration, and deposit occurred.8 See H.R. Rep. No.
94-1476, at 129, 143, 146, 150. Protection of unpublished
works was left to the states. Id. at 129. The 1976 Act, how-
ever, created a unitary system that attached federal copyright
protection to all works—published and unpublished—at the
time of their creation. Pub. L. No. 94-553, § 301(a) (codified
at 17 U.S.C. § 301(a)); see also H.R. Rep. No. 94-1476, at
129. It also eliminated some of the prior formalities of copy-
right law by relaxing notice requirements and eliminating
mandatory registration. See Pub. L. No. 94-553, §§ 301, 401-
412 (codified at 17 U.S.C. §§ 301, 401-412); see also H.R.
Rep. No. 94-1476, at 147, 150.9 These changes vastly
8
Unlike the 1976 Act’s registration procedures, registration under the
1909 Act did not allow for any discretionary determination by the Register
of Copyright. Rather, if the proper steps had been taken—publication,
notice, deposit, and payment of a fee—“it [was] the duty of the Register
of Copyrights to issue a certificate of registration under the seal of the
copyright office.” Roth Greeting Cards, 429 F.2d at 1108.
9
Notice has since been made entirely permissive, see 17 U.S.C.
§ 401(a), as Congress further relaxed copyright formalities in order to join
7482 COSMETIC IDEAS v. IAC/INTERACTIVECORP
increased the scope of works subject to copyright protection,
thus providing an incentive to create expressive works. See,
e.g., Chicago Bd. of Educ., 354 F.3d at 631.
Although registration was made optional, Congress still
valued having a robust federal register of existing copyrights.
See H.R. Rep. No. 94-1476, at 158.10 To this end, it chose to
encourage copyright holders to register with the Office of
Copyright through various statutory incentives. See 17 U.S.C.
§§ 410-412. For instance, if a copyright holder secures a reg-
istration certificate within five years after first publication,
such certificate will constitute prima facie evidence of both
the validity of the copyright and the facts stated in the certifi-
cate. 17 U.S.C. § 410(c). Moreover, certain remedies, such as
statutory damages and attorney’s fees, are available only after
registration.11 17 U.S.C. § 412. Finally, registration is required
for U.S. works prior to bringing any infringement action.12 17
U.S.C. § 411(a). Indeed, because registration is not mandatory
under the Act, copyright holders frequently register specifi-
cally for the purpose of being able to bring suit.
the Berne Convention for the Protection of Literary and Artistic Works
(“Berne Convention”), which requires that foreign works not be subject to
formalities. See Berne Convention art. 5, Sept. 9, 1886 (Paris Text 1971),
S. Treaty Doc. No. 99-27; Pub. L. No. 100-568, Sec. 7, 102 Stat. 2853
(1988) (adopting laws consistent with the Berne Convention, thus becom-
ing party to the agreement).
10
In discussing the need for proposed registration incentives in the 1976
Act, the House Judiciary Committee explained: “Copyright registration for
published works, which is useful and important to users and the public at
large, would no longer be compulsory, and should therefore be induced in
some practical way.” H.R. Rep. No. 94-1476, at 158.
11
For infringement occurring prior to the effective date of registration,
a copyright owner may still obtain actual damages and/or injunctive relief.
See 17 U.S.C. §§ 502-505.
12
As a result of the Berne Convention’s mandate that foreign works not
be subject to formalities, § 411’s pre-suit registration requirement does not
apply to non-U.S. works. See Berne Convention, art. 5.
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7483
[7] With this framework in mind, we conclude that the
application approach better fulfills Congress’s purpose of pro-
viding broad copyright protection while maintaining a robust
federal register.
[8] First, the application approach avoids unnecessary
delay in copyright infringement litigation, which could permit
an infringing party to continue to profit from its wrongful
acts. Section 411(a) allows a party, after applying for registra-
tion, to litigate the claim whether the Copyright Office
accepts or rejects the registration. See 17 U.S.C. § 411(a)
(permitting an applicant to bring an infringement suit after the
Register has rejected his or her registration, so long as the
Register is notified of the suit); see also Forasté, 248 F. Supp.
2d at 77 n.10; Prunté, 484 F. Supp. 2d at 40. Under the regis-
tration approach, however, a party must wait on the Copyright
Office’s affirmative acceptance or rejection, despite knowing
that suit can proceed in either event. As the leading treatise on
copyright explains, the registration approach thus creates a
strange scheme: “[G]iven that the claimant . . . will ultimately
be allowed to proceed regardless of how the Copyright Office
treats the application, it makes little sense to create a period
of ‘legal limbo’ in which suit is barred.” See 2 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright
§ 7.16[B][1][a][i] (2008) (“Nimmer“). The application
approach avoids this legal limbo—and avoids prolonging the
period of infringement—by allowing a litigant to proceed
with an infringement suit as soon as he has taken all of the
necessary steps to register the copyright at issue.
Moreover, the application approach avoids delay without
impairing the central goal of copyright registration. As
explained above, copyright registration is now a voluntary
procedure, with the pre-litigation registration requirement act-
ing as an incentive to help Congress maintain a robust
national register of copyrights. See H.R. Rep. No. 94-1476, at
158 (“Copyright registration for published works, which is
useful and important to users and the public at large . . .
7484 COSMETIC IDEAS v. IAC/INTERACTIVECORP
should . . . be induced in some practical way.”). This goal,
however, is accomplished equally by the registration and
application approaches, as either approach requires a party to
submit the information necessary to add the copyright to the
federal registry. See 17 U.S.C. §§ 408-409 (setting forth the
steps an applicant must take to register a copyright).
The registration approach’s added requirement of affirma-
tive approval or rejection before suit thus amounts to little
more than just the type of needless formality Congress gener-
ally worked to eliminate in the 1976 Act. On this point, it is
telling that even many courts adopting the registration
approach have recognized that “construing the statute this
way leads to an inefficient and peculiar result.” Brush Creek,
2002 WL 1906620, at *4 (quoting Ryan, 1998 WL 320817,
at *2); Loree Rodkin, 315 F. Supp. 2d at 1056-57 (same);
Strategy Source, 233 F. Supp. 2d at 3 (same). We agree. It
makes little sense to dismiss a case (which will likely be re-
filed in a matter of weeks or months) simply because the
Copyright Office has not made a prompt decision that will
have no substantive impact on whether or not a litigant can
ultimately proceed.
[9] Furthermore, in addition to being generally inefficient,
in the worst-case scenario the registration approach could
cause a party to lose its ability to sue. The Act provides a
three-year statute of limitations for copyright infringement
actions. 17 U.S.C. § 507(b). Thus, under the registration
approach, a plaintiff who applied for registration towards the
end of the three-year period could see the statute of limita-
tions expire during the time it took the Copyright Office to act
on the application. See Nimmer § 7.16[B][1][a][i] (“[G]iven
. . . a three-year statute of limitations for recovery of all dam-
ages caused by copyright infringement, the narrow [registra-
tion] approach may indeed occasion complete inability to
recover damages . . . .”). This result does not square well with
§ 410(d)’s mandate that an application’s effective registration
date should be the day that a completed application is
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7485
received. In specifying that registration is to be dated as of the
date of application—not approval—Congress sought to ensure
that an applicant did not suffer the consequences of a delay
by the Register. See H.R. Rep. No. 94-1476 at 157 (noting
that the provision is designed to “take[ ] account of the inevi-
table timelag between receipt of the application and other
material and the issuance of the certificate . . . .”). Only the
application approach fully protects litigants from any disad-
vantage caused by this timelag.
Finally, we find unpersuasive the argument that deference
to the Register requires adoption of the registration approach.
This argument posits that Congress structured the Act to
require the Register’s approval or rejection of registration
before suit because it wanted the Register to determine the
propriety of granting copyright registration in the first
instance. See, e.g., Strategy Source, 233 F. Supp. 2d at 4.
However, as Nimmer explains, “the pace of litigation entails
that the Copyright Office will typically have granted or
refused registration during its pendency.” Nimmer
§ 7.16[B][1][a][i]. Thus, should the Register determine that it
wanted to reject an application already in litigation, it would
still have an opportunity to appear. Id. Furthermore, the Reg-
ister’s decision of whether or not to grant a registration certifi-
cate is largely perfunctory, and is ultimately reviewable by the
courts.13 There is, therefore, no compelling justification for
delaying litigation until after the Register has acted on an
application. The two processes—registration approval by the
Copyright Office and an underlying infringement case in the
13
The Register looks only to ensure that the material deposited is “copy-
rightable subject matter” and that the legal and formal requirements of the
Title have been met. 17 U.S.C. § 410(a). After the Register’s determina-
tion, the courts are empowered to review any denial of a certificate, and
approval by the Register gives an applicant only prima facie evidence of
copyright, leaving the courts to make the ultimate determination in either
instance. See §§ 411(a), 410(c).
7486 COSMETIC IDEAS v. IAC/INTERACTIVECORP
courts—can occur simultaneously with little or no prejudice
to any involved parties.14
[10] We therefore hold that receipt by the Copyright Office
of a complete application satisfies the registration requirement
of § 411(a). This interpretation ensures the broad copyright
protection that the 1976 Act provided. It “best effectuate[s]
the interests of justice and promote[s] judicial economy.” Int’l
Kitchen Exhaust Cleaning Ass’n v. Power Washers of North
America, 81 F. Supp. 2d 70, 72 (D.D.C. 2000). This approach
also fully accomplishes the central purpose of registration—
the compilation of a robust national register of existing
copyrights—and at the same time avoids unfairness and waste
of judicial resources. Cf. Lau Ow Bew v. United States, 144
U.S. 47, 59 (1892) (“Nothing is better settled than that stat-
utes should receive a sensible construction, such as will effec-
tuate the legislative intention, and, if possible, so as to avoid
an unjust or an absurd conclusion.”); United States v. Leon H.,
365 F.3d 750, 753 (9th Cir. 2004) (citing Lau Ow Bew, 144
U.S. at 59).
(3)
[11] Under the application approach, Cosmetic satisfied
§ 411(a)’s registration requirement before it instituted this
action. Cosmetic alleged in its complaint that the Copyright
Office received its complete application on March 12, 2008,
weeks before Cosmetic filed its complaint. Thus, § 411(a)
14
In fact, a defendant is in some ways aided by a plaintiff’s lack of a
certificate, because if a party proceeds to litigation without a registration
certificate, it bears a greater evidentiary burden of proving the validity of
its copyright. See 17 U.S.C. § 410(c) (“In any judicial proceedings the cer-
tificate of a registration made before or within five years after first publi-
cation of the work shall constitute prima facie evidence of the validity of
the copyright and of the facts stated in the certificate. The evidentiary
weight to be accorded the certificate of a registration made thereafter shall
be within the discretion of the court.”).
COSMETIC IDEAS v. IAC/INTERACTIVECORP 7487
does not bar Cosmetic’s infringement claim, which should
proceed on its merits.
Conclusion
The judgment of the district court dismissing this action is
VACATED and REVERSED. This case is REMANDED to
the district court for further proceedings consistent with this
opinion.