might be able to submit photos of every
procedure, you should deposit the first and
volume. To prepare identifying material, first
last 25 pages of a single-file database. If the call the Copyright Office at 202-707-3000, database consists of separate and distinct
or 877-476-0778 (toll free), describe your
data files, deposit one copy of 50 complete
work, and find out what type of identifying
data records (not pages) from each file, or
material is acceptable.
the entire file, whichever is less. You must
also include a descriptive statement for a
Library of Congress Deposit
multiple-file database containing the same
Requirements
information.
The Library of Congress has its own deposit
If the database is fixed in a CD-ROM,
requirements for published works, which
deposit one complete copy of the CD-ROM are separate from those of the Copyright
package, any instructional manual, and
Office. However, the library’s deposit
a printed version of the work that is fixed
require ments are deemed satisfied when a
on the CD-ROM, if such an exact print
work is registered and a deposit made with
version exists. The deposit must also
the Copyright Office. In other words, you
include any software that is included as
don’t have to worry about the Library of
part of the package. A printout of the first
Congress if you register your work with the
and last 25 pages of the software source
Copyright Office. The one exception to this
code is acceptable.
rule is deposits for machine-readable works
such as automated databases. The library
Depositing Identifying
may demand deposit of the machine-
Material Instead of Copies
readable copies distributed after registration
Depositing two complete copies of some
has been made.
works could prove burdensome both for the
If you don’t register your published
applicant and the Copyright Office. For
work with the Copyright Office, you are
example, you would not wish to mail, and
supposed to deposit two copies with the
the Copyright Office would not want to
Library of Congress. If you don’t, the
store, a 30-volume encyclopedia. Indeed, the library is entitled to demand that you do so, Copyright Office will not accept any item
and you are subject to monetary penalties
that exceeds 96 inches in any dimension.
if you do not comply. However, in practice
82 | THE COPYRIGHT HANDBOOK
this rarely happens. Contrary to popular
Library of Congress
belief, the Library of Congress does not
U.S. Copyright Office
collect copies of everything published in the
101 Independence Avenue SE
United States.
Washington, DC 20559
Be absolutely sure to send the application,
deposit, and fee together in one package.
Sending Your Application
If you don’t, all the packages you sent will
to the Copyright Office
be returned by the Copyright Office. (But
By now you have completed your application if you send a deposit of a published work
form and have your deposit ready to go.
separately, the Copyright Office will turn it
Make a photocopy of your application form
over to the Library of Congress rather than
and retain it in your records along with an
return it to you, so you’ll get the application
exact copy of your deposit.
and fee back, but not the deposit.)
You can send your registration application
by postal mail (USPS), by a commercial
CAUTION
carrier (FedEx, UPS, and so on), or by
Copyright registration fees change
having it hand delivered. The Copyright
from time to time. So, before sending in your
Office will not inform you when it receives
registration application, check to see if the
your paper application by mail. However,
registration fees have been raised. You can do
using USPS Priority Mail Express or a
this by checking the Copyright Office website at
commercial carrier can also provide track-
www.copyright.gov, checking the update section ing and delivery confirmation. You can
of the Nolo website, or cal ing the Copyright
also obtain delivery confirmation by using
Office at 202-707-3000 or 877-476-0778 (toll free). regular USPS mail delivery confirmation or signature confirmation services. For more
information, check the USPS website
Postal Mailing Your Paper
(www.usps.gov).
Application, Fee, and Deposit
Due to the screening done to all mail
received by the Copyright Office, an
If you’re registering with a paper application acknowledgment of receipt for mail sent via (Form CO, or Form TX or one of the other
the U.S. Postal Service, such as by certified,
old application forms), you must put your
registered, or overnight delivery, may take
completed application, deposit, and appropriate several weeks to receive, if not longer.
application fee in a single package (limit
boxes to 20 pounds each) and send them to:
CHAPTER 3 | COPYRIGHT REGISTRATION | 83
Your Registration Is Effective When
Expedited Registration
the Application Is Received
In several states, a work’s registration must
Your registration is effective on the date the be completed and a certificate of registra-Copyright Office receives all three elements: tion issued by the Copyright Office before a application, deposit, and application fee in
copyright infringement lawsuit can be filed
proper form. This is so regardless of how
for the work. These states include: Alabama,
long it takes the Copyright Office to process Colorado, Florida, Georgia, New Mexico,
the application and send you your certificate Oklahoma, Utah, and Wyoming. In many
of registration. This means you don’t need
other states, it’s sufficient that a complete
to worry about not being able to obtain
application be filed with the Copyright
statutory damages or attorneys’ fees from
Office to file such a lawsuit.
anyone who copies your work while your
If you haven’t registered yet, you may
application is being processed. (Remember,
request that your application be given
you can obtain such fees and damages
special handling by the Copyright Office.
only if the work was registered before the
Special handling applications are processed
infringement occurred or within three
in five to ten days, rather than the normal
months of publication.)
three to six months or more.
EXAMPLE: Helen’s cookbook is published on
Special handling is available only if
January 1. She sends her registration package needed for copyright litigation, to meet a to the Copyright Office on Janu a
ry 31. Al
contractual or publishing deadline, or for
the items in her package are in proper form
some other urgent need.
—that is, the application form is filled out
You must pay an additional $800 fee
correctly and the pack age contains the
for special handling. The fastest way to
correct deposit and $35 application fee. The obtain special handling is to register the
Copyright Office receives her registration
work online. The online registration system
package on February 5. Helen receives her
allows you to include a request for special
certificate of registration on June 15. She
handling and either to upload a digital
later discovers that Jeremy copied her work
copy or mail in a hard copy to the special
in January. If Helen sues Jeremy for copyright handling address below. You’ll need to:
infringement, she will be entitled to obtain
• check the “Special Handling” box in
attorneys’ fees and statutory damages.
the online application
Reason: Her application was effective on the
• select at least one of the “Compelling
date it was received by the Copyright Office,
Reasons” why expedited processing is
February 5, which was within three months
needed, and
of publication.
84 | THE COPYRIGHT HANDBOOK
• check “I certify” to confirm that the
Enter comments or special instructions,
information contained in the request is including certificate delivery preferences, in
correct to the best of your knowledge.
the “Explanation” box.
If you don’t register online, you must
send a letter along with your application
Screening Delay Before
containing the following information: why
Applications Received
there is an urgent need for special handling;
Due to the anthrax scare in late 2001, al
if special handling is needed for litigation;
mail sent to the Copyright Office is screened
whether the case has been filed already or
before delivery at a special facility in Wash-
is pending; who the parties to the litigation
ington, DC. This screening process causes a
are or will be; in what court the action has
three-to-five-day delay before the Copyright
been or will be filed; and certification that
Office receives your application. Mail sent by
your statements are true.
commercial carriers, such as FedEx and UPS,
Send the special handling form or letter,
is screened as well as postal mail. This means,
your application and deposit, and a check
for example, that if you send an application
or money order payable to the Register of
by FedEx overnight delivery, the Copyright
Copyrights for $835 (the $35 application
Office won’t receive it overnight—the
fee, plus the $800 special handling fee) all
screening facility wil . Since your registration
in one package to:
isn’t effective until it is received by the Copy-
Special Handling
right Office, the screening process adds a
Copyright RAC Division
few days to the lag time before your applica-
P.O. Box 71380
tion becomes effective.
Washington, DC 20024-1380
The Copyright Office advises that
Do not send mail to this address by
to avoid damage to your deposit from
FedEx or any other private carrier. You
Copyright Office security measures, you
may use overnight or USPS Priority Mail
should package the fol owing items in
Express options.
boxes rather than envelopes:
If you need special handling for an
• electronic media such as
audiocassettes, videocassettes, CDs,
application that has already been sent to
and DVDs
the Copyright Office, call ahead to be sure
• microfilm
the Office can locate your materials. Call
• photographs, and
the Receipt Analysis and Control Division
• slick advertisements, color
at 202-707-7700 or email [email protected]. Be
photocopies, and other print items
ready to provide identifying information
that are rubber and vegetable based.
about the pending claim, including:
CHAPTER 3 | COPYRIGHT REGISTRATION | 85
• the exact title appearing on the
The Problem: Infringement Lawsuits
application
Involving Unpublished Works
• the names of the author(s) and
Prepublication copyright infringement
claimant(s)
has always posed a problem for copyright
• a full description of the deposit copy
owners. As discussed at the start of this
or copies
chapter, the statutory damages and attorneys’
• how and when the claim was delivered fees obtained against an infringer when a
to the Copyright Office (in person, by work is timely registered may often make an
courier, or by mail), and
infringement suit worthwhile. However, the
• if sent by mail, the type of mailing
copyright law provided that such damages
(registered, certified, first class, and
and fees were available for an infringed
so forth).
unpublished work only if the work was
registered before the infringement occurred.
It is possible to register an unpublished
Preregistration of
work, but this poses problems. For one
Unpublished Works
thing, a copy of the uncompleted work
In today’s digital era, it is common for
must be provided to the Copyright Office
copies of some works-in-progress to be
where it becomes available for inspection
pirated and published on the Internet
by the public. Many authors, publishers,
and elsewhere before the work has been
and other creators don’t want the public—
completed and the authorized publication
especially the competition—to have access
or distribution has occurred. This is most
to what they are working on. Also, the
common with unauthorized prereleases
registration only covers the work as it
of movies, music, and software; but it can
existed when registered. Subsequent changes
happen to books as well. In one case, for
would not be covered by the registration—
example, portions of former President
they would have to be registered in their
Gerald Ford’s unpublished memoirs were
own right. Thus, to really be protected,
lifted from his publisher and published
a creator might have to register an
without permission in The Nation magazine. unpublished work many times as it evolves ( Harper & Row v. Nation Enterprises, 471
and changes over time. Obviously, this is a
U.S. 539 (1985).)
costly and time-consumi
ng proposition.
86 | THE COPYRIGHT HANDBOOK
The Solution: Online Preregistration
a copyright infringement suit against the
Without a Deposit
copyright pirates. The publisher registers
the unpublished work three weeks later. If
Starting in 2006, copyright law offered a
the lawsuit proves successful, the publisher
solution to the problem outlined above. A
and Flynn can obtain an award of their
procedure cal ed preregistration was created.
attorneys’ fees and statutory damages.
Creators of the works that are prone to
infringement before release may preregister
If the copyright owner fails to meet the
their work by fil ing out an online application deadline for full registration, a court must at the Copyright Office website. A copy of
dismiss any lawsuit brought by the owner
the unpublished work need not be provided.
for copyright infringement that occurred
The copyright owner of an unpublished
before or within the first two months
work that has been preregistered may file a
after first publication. In this event, the
copyright infringement suit without having
copyright owner would have to register
to register the work with the Copyright
the work and file a new infringement suit.
Office. This allows a lawsuit to be filed
The late-registering owner may not obtain
quickly and may help the owner obtain court attorneys’ fees and statutory damages if
action to prevent distribution of the work.
the suit is successful. However, this rule
Even more important, the copyright
does not apply to infringement lawsuits for
owner may obtain statutory damages and
infringements occurring more than two
attorneys’ fees in a successful infringement
months after first publication.
suit against anyone who pirated the
Note that preregistration is not a substitute
unfinished work after the preregistration
for registration, nor does it provide all the
was made provided that the work is fully
benefits of registration—for example, it
registered with the Copyright Office during doesn’t create a legal presumption that the
the earlier of the following times:
work is protected by a valid copyright. Its
• three months after the first publication purpose is simply to advise the Copyright
of the work, or
Office prior to the publication of a work that
• one month after the copyright owner
The Copyright Handbook Page 16