In Goss International Americas, Inc. v. A-American Machine & Assembly Co., the Northern District of Illinois held that a party may initiate a copyright infringement action after filing a proper application for the copyright. The Circuits are split between that view and the view that a suit must wait until after the Copyright Office approves the application. Joshua P. Graham discusses the divergence in the Circuits, which may provide an argument framework for copyright applicants and alleged infringers in venues that have not considered the question. He writes:
In holding that a party need only properly file a copyright application to initiate an infringement action, the Northern District of Illinois focused on two issues. From a policy standpoint, the court reasoned that requiring a copyright applicant to idly wait for a decision by the Copyright Office while suffering financial damages as a result of a competitor copying its work is unfair.
From a practical standpoint, this unfairness is compounded by the fact that the copyright applicant may initiate an infringement action whether the Copyright Office approves of [sic] refuses the application.
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 it [sic] entitled to institute an 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), second sentence. As described by another court, "the argument goes, a copyright owner can get into court without being held hostage by the vagaries of the Copyright Office . . . ." Thus, the Northern District of Illinois held that "[the copyright applicant's] registration is effective for purposes of initiating an infringement suit as of the day plaintiff filed its application." This holding is consistent with both the Fifth and Eighth Circuits.
On the other side of the split, Circuit courts have focused on the language of Title 17 in requiring approval of a copyright application before initiation of an infringement action. According to this interpretation, the plain statutory language distinguishes "application" from "registration." First, § 411(a) itself uses the term "application" as clearly something separate and apart from "registration."
(footnotes omitted.)