A political shake-up at the U.S. Copyright Office has triggered operational chaos and legal uncertainty, leaving creators and copyright lawyers questioning the validity of recent registrations. Following the Trump administration’s removal of Shira Perlmutter as Register of Copyrights, the Office briefly paused registrations and then resumed issuing certificates without the signature of a duly authorized Register.
The Copyright Act does not explicitly require the Register’s signature on a certificate, but it does require that the Register make the determination of copyrightability. Critics argue that without someone properly serving in that role, the Office may lack authority to issue valid registrations at all. This concern has left attorneys speculating about the potential fallout in future infringement litigation.
In the United States, a valid copyright registration (or a refusal from the Register) is a prerequisite to a suit for infringement. If a suit is based on a copyright certificate issued during a period when no lawful Register is in place, the defendant might argue that the registration is invalid and cannot support the lawsuit. As law professor Justin Hughes put it, “There is no registration here. The registration’s infirm…because the statute says the Register has to determine copyrightability, and there was no one playing Register at this time.”
The dispute began when President Trump dismissed Carla Hayden, the Librarian of Congress, without Senate approval and installed Department of Justice officials in acting roles at the Library and the Copyright Office. Perlmutter challenged her removal in court, and her complaint details confusion over who is legally in charge. One acting appointee was even reportedly denied physical access to the Copyright Office.
Until the courts settle the questions surrounding Perlmutter’s dismissal and the legitimacy of the acting appointments, content creators and legal practitioners should tread carefully. In the current environment, even a routine copyright registration may no longer carry the reliability it once did. Yet delaying registration has its own risks, since statutory damages and attorney’s fees are only available if registration occurs within three months after publication or before infringement begins. Waiting could mean forfeiting important legal remedies.
Though not the most urgent legal issue arising from the administration’s unilateral actions, the uncertainty surrounding copyright reflects yet another unintended consequence of politically motivated and rushed decision-making.
[A]ttorneys and legal scholars have expressed concerns regarding the validity of registrations issued with no register of copyrights officially in place.
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