the work is being prepared for commercial
learned of the infringement.
distribution and thereby preserve your right
to obtain statutory damages and attorney
EXAMPLE: Copyright pirates obtain a
fees in an infringement suit. You must fol ow
copy of a draft version of Gil ian Flynn’s
through with a full registration of the work
sequel to Gone Girl and release it on
shortly after publication or infringement
the Internet before the final version is
of the work. The fact that a work has
published. Flynn’s publisher preregistered
been preregistered does not mean that the
the book before the draft was stolen. As a
Copyright Office necessarily will register the
result, the publisher can immediately file
CHAPTER 3 | COPYRIGHT REGISTRATION | 87
work when an application for registration
Written works other than books may not
is submitted. Also, you may register an
be preregistered—for example, a screenplay
unpublished work without preregistering it.
not intended to be published in book form.
The intended commercial distribution of
Is Preregistration for You?
the work can be in either physical or digital
format—for example, e-books or CDs to be
For the vast majority of works, preregistration sold online.
is a waste of money. The Copyright Office
You can’t preregister ideas for new works.
itself says that “(f)or the vast majority of works, You must have begun to actually write the preregistration is not useful.” Few works,
work involved, though it does not have to
especially written works, are infringed upon be finished.
before they are published or otherwise dis-
tributed. This type of thing usually occurs
Online application
with popular movies and songs. However,
You preregister by completing an online
you may benefit by preregistering your work application at the Copyright Office website
if you think it’s likely someone may infringe (www.copyright.gov). You must provide the
your unfinished work before it is released.
following information:
• the work’s title (a working title may
How to Preregister
be used)
Preregistration is a quick, though expensive,
• the names of the author and copyright
process. The whole thing is done online
claimant
through the Copyright Office website with
• the date the actual writing of the book
no paper involved.
began and the date you anticipate
completing it, and
What can be preregistered?
• a description of the work—for
example, whether it is a novel or
You can preregister your work only if all
biography, the nature of the subject
below apply:
matter, whether it is a later edition or
• It is unpublished.
revision of a previous work, and any
• Its creation has begun.
other details which may help identify
• It is being prepared for commercial
the work in published book form.
distribution.
You need not provide the Copyright
• It is one of the following: a motion
Office with a copy of your unpublished
picture, musical work, sound
work or make any other deposit. The
recording, computer program, book, or nonrefundable filing fee for preregistration
advertising photograph.
is $115.
88 | THE COPYRIGHT HANDBOOK
What Is Publication?
include a preregistration number and date.
This is the only notice you will receive
Publication occurs for copyright purposes
that preregistration has been made. The
when the copyright owner, or someone
Copyright Office does not issue a paper
acting with the copyright owner’s authority,
certificate of preregistration.
distributes one or more copies of the work
to the general public or offers the work
for distribution, public display, or public
CAUTION
performance. Copies do not need to be
Your preregistration is a public
sold for publication to occur—they can be
record. Everything you say in your preregistration
leased, rented, loaned, or even given away, so
application becomes a public record of the
long as the work has been made available to
Copyright Office that can be read by others. So you
the general public.
might not want to say too much about your work-
Publication does not occur when:
in-progress. Moreover, if you want to have a website
• Copies of the work are made but not
using the book’s title as a domain name, you may
distributed.
want to obtain the name before you preregister
• The text of the work is performed
the book. Otherwise, a “cybersquatter” could learn
publicly (for example, a speech is
about your title from your preregistration and
presented).
register the domain name before you.
• The text of the work is displayed
(for example, in a slide presentation
or on television).
A “limited publication” is also not con-
Dealing With the Copyright Office
sidered a publication. A limited publication
The Copyright Office has an enormous
occurs if copies are distributed only:
workload (they handle over 700,000
• to a selected group of people
applications per year), so it can take several
• for a limited purpose, and
months for your application to be processed.
• without the right of further
Indeed, the Copyright Office says that the
reproduction, distribution, or sale.
average processing time is six to ten months
For example, it is not a publication when
for online registrations and ten to 15 months
an author sends copies of a manuscript to
for paper form registrations. If you apply for
several publishers seeking publication.
copyright registration online, you will receive
confirmation by email that your application
has been received. You can also monitor the
If you fill out the application correctly,
progress of your application online. This is
the Copyright Office will email you a
not possible with applications by mail. Be
notification of preregistration which will
patient and remember that the registration is
CHAPTER 3 | COPYRIGHT REGISTRATION | 89
effective on the date it is received (assuming
The rule of doubt
the forms were fil ed out properly), not the
As a matter of policy, the Copyright Office
date you actually receive your registration
will usually register a work even if it has a
certificate.
reasonable doubt as to whether the work
The Cop
yright Office will eventually
is copyrightable or the other requirements
respond to your application in one of three
have been met. This is called the rule of
ways:
doubt. The Copyright Office takes the
• If your application is acceptable, the
view that determining a copyright’s validity
Copyright Office will send you a
in such cases is a task for the courts. For
registration certificate, which is merely a example, the office would ordinarily register copy of your application with the official a new edition of a previously registered
Copyright Office seal, registration date, work under the rule of doubt, even though
and number stamped on it. Be sure to
it had a reasonable doubt whether the
retain it for your records.
edition contained enough new expression
• If your application contained errors
to be registrable. When registration is made
or omissions the Copyright Office
under the rule of doubt, the Copyright
believes are correctable, a copyright
Office will ordinarily send the applicant a
examiner may phone or email you for
letter cautioning that the claim may not be
further information. Or he or she may valid and stating the reason.
return the application or deposit with
a letter explaining what corrections to
Clearly unregistrable material
make.
• If the Copyright Office determines
The Copyright Office will refuse to register
that your work cannot be registered, it a work that is without doubt unprotectable.
will send you a letter explaining why.
For example, the Copyright Office would
Neither your deposit nor fee will be
not register a title, since titles are not copy-
returned.
rightable, nor would a work clearly in the
public domain be registered (for instance, the
King James version of the Bible) unless the
Extent of Copyright Examiner’s
Review of Your Application
applicant added protectable material to it.
The copyright examiner will examine
Presence of errors or omissions
your deposit to see whether it constitutes
The Copyright Office will not issue a
copy rightable subject matter and review
certificate if the application contains errors
your application to determine whether the
or omissions or is internally inconsistent
other legal and formal requirements for
or ambiguous. Here are some of the more
registration have been met.
common errors:
90 | THE COPYRIGHT HANDBOOK
• failure to sign the application
Review of Copyright Office’s
• failure to pay the application fee
Refusal to Register Application
• failure to provide the required number
of deposit copies
If you think the copyright examiner has
• failure to adequately describe the
wrongfully refused to register your work,
nature of authorship
you may submit a written objection to the
• deposit does not match description of
refusal and request that the Copyright
nature of authorship
Office reconsider its action. The appeal
• nature of authorship is described by a
letter should be addressed to:
title or identifying phrase
U.S. Copyright Office Receipt Analysis
• failure to provide the publication date
and Control Division
• the work-made-for-hire box is checked,
P.O. Box 71380
but the employer is not listed as the
Washington, DC 20024-1380
copyright claimant
The first request for reconsideration must
• failure to state how ownership was
be received in the Copyright Office within
transferred where copyright claimant is three months of the date of the office’s
not the same as the author
first refusal to register, and the envelope
• failure to identify adequately the
containing the request should be clearly
material added to a new version or
marked: “First Reconsideration.” A $250 fee
derivative work (Space 6b), and
is charged to process an appeal.
• date application is signed is prior to
If the claim is refused after reconsideration,
publication date in application.
the head of the appropriate Examining
The Copyright Office will ordinarily
Division section will send you written notice
call you or send a letter asking you to fix
of the reasons for the refusal. After this, you
technical errors such as these. Reread our
may again request reconsideration in writing.
discussion about how to complete the
This second appeal must be received in the
application forms to help you make your
Copyright Office within three months of the
corrections. Send your corrected application date of the office’s refusal of the first appeal.
or new deposit back to the Copyright Office
A second appeal costs $500 to process and
in one package.
is handled by the Copy right Office Board
Be sure you respond within 120 days to
of Review, which consists of the Register of
any correspondence from the Copyright
Copyrights, the general counsel, and the
Office concerning your application. Other-
chief of the Examining Division. The chair
wise, your file will be closed, your fee will
of the Board of Review will send you a
not be returned to you, and you’ll have to
letter setting out the reasons for acceptance
reapply by sending in a new application,
or denial of your claim. The board’s
deposit, and fee.
CHAPTER 3 | COPYRIGHT REGISTRATION | 91
decision constitutes the Copyright Office’s
actual y copied from them or others. Such
final action. You may then bring a legal
accusations are easily disproved if the work
action to have a court review the Copyright you claim was infringed upon was deposited
Office’s decision. In addition, you can
with the Copyright Office before the
bring a copyright infringement action
infringing work or other work the infringer
notwithstanding the Copyright Office’s
claims you copied was written or published.
refusal to register your work. You’ll need
In this event, you just need to submit to
to see a lawyer about this. (See Chapter 15,
the court a certified copy of the deposit you
“Help Beyond This Book.”)
made with the Copyright Office.
The Copyright Office will provide
certified copies of deposits of registered
Full-Term Retention of
works that are involved in litigation. But,
Deposits and Other Ways
of course, such copies can be made only if
to Preserve Deposits
the Copyright Office still has the deposit.
Whether or not your application is accepted, So you might be in for trouble if the
your deposit becomes the property of the
infringement litigation takes place more
U.S. government and will never be returned than five years after the work was registered to you. The Library of Congress may add the and the deposit has been destroyed by the
deposit to its own col ection. If the Library
Copyright Office.
chooses not to do so (which is usual y the
If you want to protect against this possi-
case), and your application is accepted, the
bility, you may request full-term retention
Copyright Office will retain the deposit in
of your deposit. Full-term retention means
its own storage facilities for five years. Due to that the Copyright Office will retain one a lack of storage space, the Copyright Office copy of your deposit for 75 years from the normal y destroys all deposits of published
date of publication. You must request full-
works after five years. However, the Copy-
term retention in writing and pay a $540
right Office may not destroy a deposit of an
fee. Only the person who made the deposit,
unpublished work without first making a
the copyright owner, or an authorized
copy of it.
representative may make the request. You
can make this request when you register
the work or any time thereafter. There is no
Ful -Term Retention of Deposits
form for this purpose. Send a letter to the
People sued for copyright infringement have Chief, Information and Reference Division,
been known to attempt to turn the tables
Copyright Office, Library of Congress,
on their accusers and claim that the accusers Washington, DC 20559, stating that you
92 | THE COPYRIGHT HANDBOOK
desire full-term retention of your deposit.
must not unseal or otherwise tamper with
Identify the deposit by title, author, and
the envelope. However, this method is not
registration number. If you request full-term foolproof, because a judge or jury might not retention of your deposit when you make
believe that you did not tamper with the
your initial registration, you must send the
envelope (this actual y happened in one case).
Copyright Office an additional copy of the
Note that emailing a digital copy to
deposit—that is, three copies of published
yourself instead of postal mailing a hard
works and two copies of unpublished works. copy is not a good option. The reason?
Email is not delivered by an independent
government agency (the U.S. Post Office)
The Copyright Handbook Page 17