Is Copyright Registration Required Before Filing a Lawsuit in U.S. Court? (With Statutory Provisions and Case Law Analysis)

Many authors ask: “If a work was created in France or another country and has not been registered with the U.S. Copyright Office, can copyright infringement still be sued in a U.S. court?” This question arises particularly often for U.S. citizens or lawful permanent residents.

This article will explain:

• Does copyright arise automatically?

• What is a “United States work”?

• Is registration with the U.S. Copyright Office required before filing suit?

• Are U.S. citizens and lawful permanent residents treated differently?

• Does online publication count as “publication in the United States”? (with key cases)

  
  

I. Key Conclusions

1. The place of creation (such as France) does not affect the automatic existence of copyright protection in the United States. Because the United States is a party to the Berne Convention, a work is automatically protected upon creation, without any registration requirement.

2. However, whether a copyright infringement action may be brought in a U.S. federal court depends on whether the work qualifies as a “United States work.”

3. If a work is a United States work, registration with the U.S. Copyright Office must be completed before filing suit (17 U.S.C. §411(a)).

4. Unpublished works created by U.S. citizens are generally considered United States works, regardless of the place of creation. The same applies to lawful permanent residents (green card holders).

5. For published works, the key factor is the place of first publication, not the author’s nationality.

II. Automatic Copyright Protection: 17 U.S.C. §104 (Eligibility for Copyright)

Under 17 U.S.C. §104:

• Unpublished works are automatically protected under U.S. copyright law, regardless of the author’s nationality or place of creation.

• Published works are protected as long as their first publication occurred in a treaty country (France, for example, is a Berne Convention member).

Therefore, a work created by a U.S. citizen in France automatically enjoys copyright protection in the United States, even if it has not been registered. However, “having copyright” does not equal “being able to sue for infringement in the United States.”

III. The Determinative Standard for Registration: Whether the Work Is a “United States Work”

Whether registration is required before litigation depends entirely on whether the work is classified as a “United States work.”

The legal basis is:

• 17 U.S.C. §101 — Definition of “United States work”

  
  

1. Unpublished Works

An unpublished work is considered a United States work if:

• All authors are U.S. citizens, domiciliaries, or habitual residents.

The key point here is that for unpublished works, the place of creation is irrelevant; only the author’s nationality or domicile matters.

Therefore:

• An unpublished work created by a U.S. citizen in France → United States work

• An unpublished work created by a U.S. lawful permanent resident in France → United States work

The location of creation does not affect the outcome.

2. Published Works

For published works, the determining factor becomes the place of first publication.

A work is generally considered a United States work if:

• It is first published in the United States, or

• It is first published simultaneously in the United States and a treaty country.

Only in limited exceptions does the author’s nationality matter, such as:

• Where the work is first published in a non-treaty country and all authors are U.S. citizens or U.S. domiciliaries (§101(1)(D)).

  
  

IV. Is Copyright Registration Required Before a Federal Lawsuit?

United States Works Must Be Registered: 17 U.S.C. §411(a)

Section 411(a) of the Copyright Act clearly provides:

If a work is a United States work, registration must be completed before an infringement action may be brought in federal court.

The U.S. Supreme Court confirmed in Fourth Estate v. Wall-Street.com, 586 U.S. ___ (2019) that:

• Merely submitting a registration application is insufficient.

• The Copyright Office must either grant or refuse registration before a lawsuit may be filed.

  
  

V. Why Can Many Foreign Authors Sue Without Registration?

Because many foreign authors’ works are classified as “foreign works”, not “United States works.” The U.S. Department of Justice, in Prosecuting Intellectual Property Crimes, expressly states:

• United States works require registration.

• Non-U.S. works may, in most circumstances, be sued upon without prior registration.

  
  

VI. Key Cases on Online Publication in Practice

1. Moberg v. 33T LLC (D. Del. 2009) — Supporting “Foreign Work” Status

• A Swedish photographer’s works were first published on a German website.

• The defendant argued that “online publication equals worldwide simultaneous publication,” thus constituting U.S. publication and requiring registration.

The court rejected this argument, holding that:

• Treating foreign website publication as simultaneous U.S. publication would “overextend and pervert” U.S. copyright law.

The court determined the works were foreign works and could be sued upon without registration.

2. Kernel Records Oy v. Mosley (11th Cir. 2012) — A More Restrictive View

The court held that online publication could be considered simultaneously accessible in the United States.

As a result, the work could be deemed a United States work, requiring registration prior to litigation.

This case demonstrates that different federal circuits take different approaches to whether online publication constitutes first publication in the United States.

VII. U.S. Citizens vs. Lawful Permanent Residents: Any Difference?

The statutory language refers to:

• “citizens or domiciliaries / habitual residents”

This means that:

• U.S. citizens

• U.S. lawful permanent residents (green card holders)

• Other long-term U.S. residents

Are treated identically under §101 for purposes of defining unpublished United States works.

VIII. Practical Decision Framework

The following table can help with quick analysis:

Scenario	U.S. Citizen / LPR	Published?	Place of First Publication	Registration Required to Sue?
Unpublished	Yes	No	N/A	Must register (U.S. work)
Unpublished	No	No	N/A	Not necessarily (registration still recommended)
Published	Yes/No	Yes	United States	Must register (U.S. work)
Published	Yes/No	Yes	France (Berne country)	Most courts say no registration required
Published	Yes/No	Yes	Online, globally accessible	Court-dependent (Moberg vs. Kernel)

IX. Final Conclusion

Can an unregistered work be sued for infringement in the United States? In summary:

• If a U.S. citizen or lawful permanent resident creates a literary work in France that remains unpublished, the work is a United States work, and registration with the U.S. Copyright Office is required before filing an infringement action. The place of creation is irrelevant; the author’s status is determinative.

• If the work has been first published in France, most courts will treat it as a foreign work, allowing an infringement action to proceed without registration. However, some courts apply a stricter approach to online publication, resulting in a split in authority.

(Disclaimer: The information published herein is provided for reference purposes only and should not be regarded as legal authority or legal advice on any subject. All rights reserved. Reproduction requires permission from Allbelief Law Firm.)