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Withdrawn October 19, 2009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
Opinion by Judge Trager

7470 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 prerequisite 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 completed registration application to the Copyright Office before

instituting its infringement action. HSN argues that registration occurs only after the Copyright Office has affirmatively

granted a registration.

7472 COSMETIC IDEAS v. IAC/INTERACTIVECORP
Background

(1)

In 1997, Cosmetic, doing business as Sweet Romance Jewelry Manufacturing, created a piece of costume jewelry

known as the “Lady Caroline Lorgnette” (“the necklace”).

Cosmetic began manufacturing and selling copies of the necklace 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 application 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 ultimately issued Cosmetic a registration certificate for its copyright 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 registration 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. 

1At 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 outcome of this appeal. See Cosmetic Ideas, Inc. v. HSN, Inc., CV-09-01215

(R) (RZx), Doc. No. 29 (C.D. Cal. May 18, 2009). 

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7473
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 Copyright Act, 17 U.S.C. § 101 et seq. (2006). Questions of statutory 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 registration 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 precondition to filing a claim,” it “does not restrict a federal

court’s subject-matter jurisdiction.” 130 S. Ct. at 1241. Therefore, 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. 

2Reed 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. 

7474 COSMETIC IDEAS v. IAC/INTERACTIVECORP
(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 failure to state a claim, pursuant to Federal Rule of Civil Procedure 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 jurisdictional 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 “application approach”), or at the time that the Office acts on the

application and issues a certificate of registration (the “registration approach”)?3

 Our sister circuits have split in answering

this question.4 For instance, the Fifth and Seventh Circuits

3The 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. 

4The district courts are also split, sometimes even within the same circuit. 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. Universal Music Group, 484 F. Supp. 2d 32, 39-40 (D.D.C. 2007); Phoenix Renovation 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.

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7475
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 registration 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); Corbis 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. Associated 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. 

5Although 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). 

7476 COSMETIC IDEAS v. IAC/INTERACTIVECORP
A

We first note that, according to the representations of Cosmetic at oral argument and in subsequent briefing, the Copyright 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 repetition 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 copyright in any United States work shall be instituted until preregistration 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.

6Preregistration 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). 

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7477
Because the clause at issue gives no guidance in interpreting 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 determine . . . intent.” (internal quotation marks and citations omitted)). An examination of the statutory language here,

however, reveals ambiguity that leaves us no closer to determining 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 copyrightable 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”). 

7478 COSMETIC IDEAS v. IAC/INTERACTIVECORP
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 registration 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 delivering 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 requirements, § 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 adopting 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 appliCOSMETIC IDEAS v. IAC/INTERACTIVECORP 7479
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 subsection 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 backdating 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

7The 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.

7480 COSMETIC IDEAS v. IAC/INTERACTIVECORP
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 discern 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.8See 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, however, 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 copyright 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

8Unlike 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. 

9Notice has since been made entirely permissive, see 17 U.S.C.

§ 401(a), as Congress further relaxed copyright formalities in order to join

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7481
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 registration 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 certificate. 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 specifically 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 becoming party to the agreement). 

10In 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. 

11For 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. 

12As 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. 

7482 COSMETIC IDEAS v. IAC/INTERACTIVECORP
[7] With this framework in mind, we conclude that the

application approach better fulfills Congress’s purpose of providing 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 registration, 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 registration 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 acting 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 . . .

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7483
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 affirmative approval or rejection before suit thus amounts to little

more than just the type of needless formality Congress generally 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 refiled 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 limitations 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 damages caused by copyright infringement, the narrow [registration] 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

7484 COSMETIC IDEAS v. IAC/INTERACTIVECORP
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 inevitable timelag between receipt of the application and other

material and the issuance of the certificate . . . .”). Only the

application approach fully protects litigants from any disadvantage 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 Register’s decision of whether or not to grant a registration certificate 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

13The Register looks only to ensure that the material deposited is “copyrightable 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 determination, 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). 

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7485
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 statutes should receive a sensible construction, such as will effectuate 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)

14In 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 certificate of a registration made before or within five years after first publication 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.”). 

7486 COSMETIC IDEAS v. IAC/INTERACTIVECORP
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. 

COSMETIC IDEAS v. IAC/INTERACTIVECORP 7487