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04A registration


About This Page

This page contains the following subsections:

04A.1 — registration late (go there)
04A.2 — registration deficiency (go there)
04A.3 — registration duplicated (go there)
04A.4 — group registration (go there)
04A.5 — group renewal (go there)

Where to Look in the Law

1909 Act: §44
1947 Act: §30
1976 Act: §§409, 410

CFR: § 201.5 Corrections and amplifications of copyright registrations; applications for supplementary registration;
§ 201.7 Cancellation of completed registrations;
§ 211.4 Registration of claims of protection in mask works;
§ 202.3 Registration of copyright;
§ 202.16 Preregistration of copyrights.

Copyright Office Publications for Laymen

The Copyright Office publishes a multitude of circulars on registration.   Most are devoted to aspects of registration for a particular medium.

What the Courts Ruled

 

Batjac Productions Inc vs GoodTimes Home Video Corp.; Marybeth Peters, Register of Copyrights

USCA 9th Cir. (11-5-1998) ¤ 160 F.3d 1223, CCH 27,825
McLintock_sign.gif (12128 bytes)

“[I]n 1996, [Batjac] attempted to register a claim to unlimited copyright in the screenplay for [Batjac’s 1963 movie] McLintock!, but the Copyright Office refused to register the claim.  All relevant copyrightable interests in the screenplay, the Copyright Office determined, had fallen into the public domain when the copyright in the motion picture of McLintock! expired.

“Petitioner then brought this action ... claiming that the Copyright Office’s refusal to register petitioner’s copyright in the screenplay was improper.  Petitioner contended that, under Section 7 of the 1909 Act, (1) the public distribution of the movie McLintock! did not extinguish its common law right of first publication in the screenplay; (2) the Copyright Act of 1976 subsequently transformed the common law right into a statutory copyright; and (3) the resulting statutory copyright in the screenplay permits petitioner to control the movie McLintock!, even though the motion picture itself has fallen into the public domain...

“The district court [held] ... that the Register had thus properly refused petitioner’s application to register the screenplay for copyright.  The court held that the screenplay, as a component of the motion picture, had been published by the general publication of the motion picture, and that the screenplay had been protected by the motion picture’s copyright.  Accordingly, when the copyright on the motion picture expired and the movie fell into the public domain, the district court held, all elements of the screenplay that had been incorporated into the motion picture fell into the public domain as well.

“The court of appeals affirmed.”  (Citations and some numbering removed.)  (Quotation from a petition to the Supreme Court, 1999.  The Supreme Court did not accept the case.  The editor of this web site has checked these facts for accuracy against the longer opinion issued by the lower court.)


Other Information

 

From the Code of Federal Regulations, Title 37, § 201.7 Cancellation of completed registrations:

“(a) Definition. Cancellation is an action taken by the Copyright Office whereby either the registration is eliminated on the ground that the registration is invalid under the applicable law and regulations, or the registration number is eliminated and a new registration is made under a different class and number.

“(b) General policy. The Copyright Office will cancel a completed registration only in those cases where:

“(1) It is clear that no registration should have been made because the work does not constitute copyrightable subject matter or fails to satisfy the other legal and formal requirements for obtaining copyright;

“(2) Registration may be authorized but the application, deposit material, or fee does not meet the requirements of the law and Copyright Office regulations, and the Office is unable to get the defect corrected; or

“(3) An existing registration in the wrong class is to be replaced by a new registration in the correct class.

“(c) Circumstances under which a registration will be cancelled. (1) Where the Copyright Office becomes aware after registration that a work is not copyrightable, either because the authorship is de minimis or the work does not contain authorship subject to copyright, the registration will be cancelled. The copyright claimant will be notified by correspondence of the proposed cancellation and the reasons therefor, and be given 30 days, from the date the Copyright Office letter is mailed, to show cause in writing why the cancellation should not be made. [...]

“(4) Where registration has been made for a work which appears to be copyrightable but after registration the Copyright Office becomes aware that, on the administrative record before the Office, the statutory requirements have apparently not been satisfied, or that information essential to registration has been omitted entirely from the application or is questionable, or correct deposit material has not been deposited, the Office will correspond with the copyright claimant in an attempt to secure the required information or deposit material or to clarify the information previously given on the application. If the Copyright Office receives no reply to its correspondence within 30 days of the date the letter is mailed, or the response does not resolve the substantive defect, the registration will be cancelled. The correspondence will include the reason for the cancellation. [...]

“[50 FR 40835, Oct. 7, 1985, as amended at 60 FR 34168, June 30, 1995; 65 FR 39819, June 28, 2000; 66 FR 34372, June 28, 2001]”


“Each volume of a multi-volume book, when published separately, and also each issue of a periodical, is considered an independent publication.”  Act March 3, 1891, c. 565, § 11, 26 Stat. 1109


 

04A.1 registration late

Where to Look in the Law

1909 Act: §§12-13
1947 Act: §§13-14
1976 Act: §411

Under the 1976 Act, the passage on registration doesn’t specify time limits, but does state (as do the earlier Acts) that registration must precede any infringement suit.

Copyright Office Publications for Laymen

For pre-1978 works: “An original registration can be made only during the first 28-year term of copyright protection. However, it is possible to make both an original registration and a renewal registration during the 28th year of the copyright term.
   “[but] A renewal registration may be made even if there were no original registration made during the original 28-year term. (This [latter] applies only to works first published in 1964 and later.)”  (Information Circular 32; also see Information Circular 15)

What the Courts Ruled

 

George Barris vs Richard Hamilton, Madison Avenue Bookshop, Monacelli Press Inc., Anthony D’Offay Gallery Inc. and Tate Gallery Productions, Inc., Hacker Art Books, Inc. and the Museum of Contemporary Art, Los Angeles

USDC SDNY (5-14-1999) ¤ 51 USPQ 2d 1191, CCH 27,932

Photographs of Marilyn Monroe (1926-1962) bore 1962 copyright notice when published that year, but because they were not registered for copyright, they enjoyed only common-law copyright.  The 1976 Act allowed for late registration of works still in their first term, so in 1986 the copyright owner took advantage of this provision by taking out copyright registration that year.  Because 1962 was the year of publication, the first term ended in 1990.  The copyright was not renewed, so the copyright didn’t protect the photographer’s rights beyond 1990.

Photographer Barris sought a declaration that his 28-year term began in 1986.  He objected that his group of photos was first “‘published in England and not in the United States in 1962 and thus was not subject to renewal procedure.’  This contention is ill-founded.  It is axiomatic that the publication with notice according to the 1909 Act in a signatory country to the Universal Copyright Convention triggered the onset of copyright protection in the United States.”  (inner quote from plaintiff’s statement)

“By virtue of the 1909 Act and the Universal Copyright Convention, plaintiff was able to enjoy copyright protection for twenty eight years from the date of publication abroad.  Further, that protection could have been renewed had plaintiff abided by the procedural rules of the 1909 Act....  [T]he Court finds that plaintiff’s copyright protection of the photographs in question expired upon his failure to renew in 1990.  Since the alleged infringing acts took place from 1992 to 1996, and Plaintiff’s Amended Complaint fails to set forth a valid copyright for that period, Plaintiff’s claim of copyright infringement is dismissed...”

Barris offered as additional supposed proof his copyright registrations for two books (Marilyn, from 1986, text by Gloria Steinem, photos by Barris; and Marilyn—Her Life in Her Own Words: Marilyn Monroe’s Revealing Last Words and Photographs, from 1995, text and photos by Barris), but the judge did not see the relevance.  Presumably, the judge recognized (without stating so) that at most these copyrights applied to the new matter and not to the previously-published photographs.

(Another aspect of this case is under term period calculation.)

Barris_Steinem.jpg Barris_InHerOwnWords.jpg
illustrations: Of the four Barris photographs used by Hamilton in his collage, one (left) also appears (albeit with Barris’s authorization) in the book Marilyn (text by Gloria Steinem, 1986), pg. 163, and another photo (right) appears in Barris’s book Marilyn—Her Life in Her Own Words: Marilyn Monroe’s Revealing Last Words and Photographs, pg. 146.  Although the other two photos used by Hamilton are obviously from the same sessions as some similar Barris photos in the two books, the comparable pictures in these books are different exposures and poses than the two others used by Hamilton.  Richard Hamilton’s collage, titled My Marilyn, is often available online from art-print dealers who post on their sites an image of the collage.  A Google search on "Richard Hamilton" "My Marilyn" should reveal any at the time of your search.

 

 

04A.2 registration deficiency

Where to Look in the Law

1909 Act: §17
1947 Act: §18
1976 Act: §408(d)

Under the 1909 and 1947 Acts, where in “obtaining registration of a claim to copyright, [a person] shall knowingly make a false affidavit as to his having complied with the ... conditions... all of his rights and privileges under said copyright shall thereafter be forfeited.”

The 1976 Act allows corrections to copyright registrations.

Copyright Office Publications for Laymen

Circular 8 “Supplementary Copyright Registration”

“Supplementary registration is a special type of copyright registration provided for in section 408(d) of the copyright law (17 U.S.C.). If information in the basic registration is incorrect or incomplete, the law provides for ‘filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration.’ The information in the basic registration record remains unchanged. The supplementary registration augments and, in most cases, is cross-referenced to this record.”  (Information Circular 8)

“Supplementary registration can be made only if a basic copyright registration for the same work has already been completed. The statute requires that the application for supplementary registration ‘shall clearly identify the registration to be corrected or amplified.’”  (Information Circular 8)

What the Courts Ruled

 

Lizzie Hudson Collier vs Imp Films Company

D.C.N.Y. (1-28-1913) ¤ 214 F. 272.

A playwright copyrighted her play under one title (A White Slave’s Love), then allowed it to be produced under another (The Undertow).  An infringer who knew the facts was not entitled to violate the copyright on grounds of lack of copyright under (or attribution to) the second title.

This decision cannot be read to mean that registration under a different title might not excuse infringement.  “I am not satisfied that an author can copyright a play under one title, produce it under another, and hold as an infringer a person who has been misled by his action.  But I am not called upon to determine that question, as it does not arise under these pleadings.  The bill avers that the defendant produced the complainant’s work with full knowledge of all the facts.  As to such a person I think it is clear that an author or his assignee does not forfeit a copyright by a change of the title of the work.”


 

Cases Summarized in Other Sections

NBC Subsidiary (KCNC-TV), Inc. vs Broadcast Information Services, Inc. (launch this) documents the plaintiff’s attempts to correct a copyright registration that when first filed left out the date of first publication.

Other Information

 

“The filing fee for processing a claim to supplementary copyright registration is nonrefundable, whether or not copyright registration is ultimately made.”  (Information Circular 8)  The cost is considerably higher for supplementary copyright registration than a standard registration.

“[S]upplementary registration is not appropriate in the following cases:
“1. Where the work has been revised or where corrections have been made to statements appearing on the copies or phonorecords;
“2. As a substitute for renewal registration;
“3. As a substitute for recording a transfer or other document pertaining to copyright ownership; and
“4. Where a work was registered as unpublished but was actually published at the time of the basic registration.”  (Information Circular 8)


 

04A.3 registration duplicated

What the Supreme Court Ruled

 

Caliga vs Inter Ocean Newspaper Co.

215 U.S. 182 (11-29-1909)

In examining an infringement suit, a lower court had discovered two copyrights on the same photograph of a painting, and inasmuch as the second copyright was the one named in the suit, the court decided that this was not the copyright that the trial should proceed on.  The Supreme Court decided only on the aspect having to do with the duplicate registration.

“In this case, the plaintiff had complied with all the terms of the statute on October 7, 1901 [when he first secured copyright].  He then attempts to take out a new copyright under the same statute on November 5, 1901, for the same painting, by depositing a new description of the painting and the same photograph.  It is true there is a change in the title of the painting, and a slight change in the description, but these matters are immaterial, and cannot enlarge the right of the plaintiff.”

“There is absolutely no provision in the statutes for a second filing of the photograph or description, nor is there any provision as to filing any amendments thereto; and, as the matter is wholly the subject of statutory regulation, we are at a loss to preceive by what authority any second application for the same painting, with a view to securing a copyright thereon, can be sustained. If it could be, we see no reason why the proprietor might not thus extend the limit of copyright fixed in the statute by an indefinite number of new applications and filings with the librarian.”

“There is no provision, as there is in the patent law, for an amended application, and, under the patent law, it has been held that there is no authority for double patenting.”  (Later, there would be provisions for amending a copyright registration.  Doing so does not extend the duration.)

“[W]e are of opinion that the Circuit Court of Appeals was right in holding that the attempted duplication of the copyright was void and of no effect.”


 

 

04A.4 group registration

Where to Look in the Law

1909 Act: §61 (applies only to “several volumes of the same book deposited at the same time”)
1947 Act: §215 (applies only to “several volumes of the same book deposited at the same time”)
1976 Act: §§404, 408(c)(2)

Copyright Office Publications for Laymen

Circulars 62, 62a
FL 124 “Group Registration of Published Photographs”

“Registration for a particular [dramatic] script applies only to the copyrightable material in that script; ‘blanket’ registration for future scripts or for a series as a whole is not available. (However, an unpublished collection of material may be registered with one application.)”  (Fact sheet FL119)

Cases Summarized in Other Sections

Bouvé, Register of Copyrights vs Twentieth Century-Fox Film Corporation (launch this) had the Register of Copyrights insisting that twenty articles in periodicals be registered as twenty separate copyrights rather than as one collection as the claimant wanted.

Other Information

 

“Each volume of a multi-volume book, when published separately, and also each issue of a periodical, is considered an independent publication.”  Act March 3, 1891, c. 565, § 11, 26 Stat. 1109  (The provision for Group Registration came into effect afterward.)


 

04A.5 group renewal

Where to Look in the Law

1909 Act: Not discussed
1947 Act: Not discussed
1976 Act: §408(c)(3)

Copyright Office Publications for Laymen

“Requirements for Group Renewal: A renewal registration using a single application and $[75] fee, plus $30* for each addendum, (if required), can be made for a group of periodical contributions if all the following five statutory conditions are met:
   “1. All the works were written by the same author, who is or was an individual (not an employee for hire);
   “2. All of the works were first published as contributions to periodicals (including newspapers) and were copyrighted on their first publication;
   “3. The renewal claimant or claimants and the basis of the claim or claims are the same for all the works;
   “4. The renewal application and fee are received not less than 27 years after the 31st day of December of the calendar year in which all the works were first published; and
   “5.The renewal application identifies each work separately, including the periodical containing it and the date of first publication.”  (*NOTE: Copyright Office fees are subject to change)   (Information Circular 15)  [EDITOR’S NOTE: The above applies to works published prior to 1978.  In that all pre-1978 works are past their 27th year, the preceding is of interest strictly for determining whether such renewals were done correctly.]

 

 

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