KOSTIW LAW GROUP, PC

 

The "Scoop" on Copyright Preregistration

What is Copyright Preregistration?

Copyright preregistration is a service intended for works that have had a history of prerelease infringement. Copyright preregistration focuses on the infringement of movies, recorded music, and other copyrighted materials before copyright owners have had the opportunity to fully complete or market their products.

Copyright preregistration is not copyright registration.

For the vast majority of works, preregistration is not useful. Preregistration is not a substitute for registration. If you do preregister your work, you are required to register it when it is published.

The nonrefundable filing fee for preregistration is $100. You may register an unpublished work for $45, without preregistering it.

You may benefit by preregistering your work if:

• you think it’s likely someone may infringe your work before it is released; and
• you have started your work but have not finished it.

You may also search Preregistration Records approved by the Copyright Office from October 2005 to date. http://preregcatalog.loc.gov

Pursuant to the provisions of the Artists' Rights and Theft Prevention Act of 2005, the Copyright Office is accepting preregistration of unpublished works that are being prepared for commercial distribution for types of works that the Register of Copyrights determined have had a history of pre-release infringement.

Preregistration is not a substitute for registration. Its purpose is to allow an infringement action to be brought before the authorized commercial distribution of a work and full registration thereof, and to make it possible, upon full registration, for the copyright owner to receive statutory damages and attorneys' fees in an infringement action.

In order to preserve the legal benefits of preregistration, a person who has preregistered a work is required to register such work within one month after the copyright owner becomes aware of any infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication. See U.S.C. 17 408(f), 411 and 412, as amended; also 37 C.F.R. 202.16, as added.

What are the Conditions for Preregistration?

You may submit a work for preregistration only if it meets these three conditions:

1. the work must be unpublished;
2. the work must be in the process of being prepared for commercial distribution in either physical or digital format, (e.g., film copies, CDs, or computer programs to be sold online); and
3. the work must be one of the following types of works:

• motion pictures
• sound recordings
• musical compositions
• literary works being prepared for publication in book form
• computer programs(including videogames)
• advertising or marketing photographs

To preregister a work, you will be required to submit an online application, which includes a certification of a reasonable expectation that the work will be commercially distributed, that the information given in the application is correct, and a nonrefundable $100 filing fee.   

Persons wishing to preregister a copyright must apply online.

No paper application form is available.

Only an application and fee are required; a copy of the work itself, or any finished part thereof, should not be submitted. Instead, the applicant must give as full a description of the work as possible in the online application.

A work may be preregistered only if creation of the work and fixation in some tangible medium has already begun. 17 U.S.C. 102(b), states that ideas and concepts are not subject to copyright protection, therefore ideas and concepts cannot be preregistered or registered. The work to be preregistered must be one that falls within the subject matter enumerated in 17 U.S.C. 102(a).

Preregistration is a streamlined process available only online. Preregistration requires sufficient information to reasonably identify the work for which preregistration is sought, but no deposit materials are required, and the online application form will not be examined except to ascertain that all the necessary information has been provided by the applicant.

Preregistration is not a substitute for registration. It is simply a means of preserving the ability to satisfy the requirements of sections 411(a) and 412 of the Copyright Act by advising the Copyright Office prior to the publication of a work that the work is being prepared for commercial distribution, and then following through with a registration shortly after publication or infringement of the work.

The fact that a work has been preregistered does not mean that the Copyright Office necessarily will register the work when an application for registration is submitted. The Office will also not compare the information provided in the preregistration submission with that provided in the follow-up registration, (e.g., names of authors may be added and names of claimants may change between the time of preregistration and the time of a full, follow-up registration).

What Types of Works Eligible for Preregistration?

Motion Pictures.

Definition from copyright law, 17 U.S.C. 101: An audiovisual work consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

From Compendium of Copyright Office Practices, sec. 480.03:  A motion picture may embody the contributions of many persons whose efforts are brought together to make a unified cinematographic work of authorship.

Eligibility: To be eligible for preregistration, it is required that creation and fixation of the work in a motion picture format must have already commenced, (i.e., filming must have begun); and the claimant in the work can verify that he or she has a reasonable expectation that the work will be commercially distributed.

Sound Recordings.

Definition from copyright law, 17 U.S.C. 101: A work resulting from the fixation of a series of musical or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.

From Compendium of Copyright Office Practices, sec. 495.01: Sound recording authorship may be contributed by the performer or by the record producer and many times is contributed by both. 

Eligibility: All sound recordings, including those having musical compositions as well as other types of underlying works, (e.g., spoken poems, are eligible for preregistration).

In addition, it is required that: at least some of the sounds must already have been fixed in a sound recording medium;  and the claimant in the work can verify that he or she has a reasonable expectation that the work will be commercially distributed.

Musical Compositions.

Definition From Compendium of Copyright Office Practices, sections 401 - 403.01:
Musical compositions are original music, including any accompanying lyrics; also, original arrangements or other derivative versions of earlier musical compositions to which new copyrightable authorship has been added. Music is generally defined as a succession of pitches or rhythms, or both, usually in some definite pattern. Musical works are registrable without regard to aesthetic standards.

Eligibility: To be eligible for preregistration, it is required that creation of the musical work and fixation in some tangible medium, such as notated copies or audio recordings, must have commenced;  and a performance of the completed musical work will be reproduced in a sound recording or in a sound track of a motion picture that is intended for distribution, either in hard-copy formats or online; and the claimant in the work can verify that he or she has a reasonable expectation the work will be commercially distributed.

Literary Works Being Prepared for Publication in Book Form.

Definition from copyright law, 17 U.S.C. 101: Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia.

From Compendium of Copyright Office Practices, section 303: A literary work is one that explains, describes, or narrates a particular idea, theme, or subject.

Eligibility: To be eligible for preregistration, it is required that creation and fixation of the literary work must have already commenced;  and the claimant in the work can verify that he or she has a reasonable expectation that the work will be commercially distributed in the form of a book.

Computer Programs (including videogames).

Definition from copyright law, 17 U.S.C. 101: A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

From Compendium of Copyright Office Practices, section 321.03: The Copyright Office considers source and object code as two representations of the same computer program.

Eligibility: To be eligible for preregistration, it is required that creation and fixation of the computer program, i.e., the code, must have already commenced; and the claimant in the work can verify that he or she has a reasonable expectation that the work will be commercially distributed.

Advertising or Marketing Photographs.

Definition from copyright law, 17 U.S.C. 101: photographs are included in the definition of “pictorial, graphic and sculptural works.”

From Compendium of Copyright Office Practices, section 508.01: Original photographic composition capable of supporting registration may include such elements as time and light exposure, camera angle or perspective achieved, deployment of light and shadow from natural or artificial light sources, and the arrangement or disposition of persons, scenery, or other subjects depicted in the photograph.

Eligibility: To be eligible for preregistration, it is required that creation and fixation of the advertising or marketing photograph for a product or service must have already commenced, although further editing or modifications may not yet have occurred;

the claimant can verify that he or she has a reasonable expectation that the photograph will be commercially distributed.

A claimant may also preregister multiple photographs taken for use in a particular advertising or marketing project for a particular product or service, if at least some of the photographs have been created and fixed, and if the claimant can verify that he or she has a reasonable expectation that at least one of the photographs will be commercially distributed.

Type of Work.

Select at least one type of work. More than one type may be selected if all works are owned by the same claimant, both works will be published at the same time as a single unit, and you want to preregister both. 

Examples:

• The same person or company owns musical compositions and the sound recordings of them, and both will be published for the first time on a compact disc: Check the boxes labeled "Sound Recording" and "Musical Composition."
• The same company owns a sound recording remixed from a previously published recording, and a new music video. The derivative sound recording and music video will be published for the first time as a set consisting of a DVD and a SACD (super audio compact disc): Check the boxes labeled "Sound Recording" and "Motion Picture."
• The same company owns a new product consisting of a videogame that is being published for the first time in packaging that also contains the first publication of a large print of an advertising photograph associated with the videogame: Check the boxes labeled “Computer Program” and “Advertising and Marketing Photograph.”

Title.

Give the title by which the work is currently identified. This may be a working title, which will not necessarily be the title of the work when it is distributed to the public.

If the Type of Work is a sound recording or musical work and the work being preregistered is an album, give only the album title here. Enter individual track titles, if known, on the next screen.

Additional Titles (for sound recordings and musical works on albums only)

If the work being preregistered is an audio recording of an album and you know the titles or working titles of individual tracks, you are encouraged to give those titles to add to the completeness of the preregistration record.

Author.

Give the full name of the author or authors. For preregistration, the author is the person (or company) who it is anticipated will be identified on the basic application for the completed work as the author under the copyright law, when the follow-up registration is made.  For a pseudonymous work, you may give either the pseudonym or the legal name of the author.

The author is either the individual who is the actual creator of the work, or an employer for whom the work is being prepared as a "work made for hire." The employer for a "work made for hire" is the author under the copyright law and should be named as such on the application.

Copyright Claimant.

Give the full, legal name of the claimant, that is, the person (or company) who is anticipated will be identified on the application as the owner of copyright in the completed work when the follow-up registration is made. The claimant is either the author or the person or organization that has obtained ownership of all rights under the copyright by means of a legal transfer from the author. It is not necessary that the author and claimant be identical if someone other than the author is, or will be, the copyright owner.
 

Key Dates.

(1) Date on which creation commenced.

This should be the date or the approximate date on which actual creation of the work and fixation in some tangible medium began:

• For a motion picture: the date filming began.
• For a sound recording: the date recording sessions began.
• For a musical composition: the date the music and/or lyrics were initially written or recorded.
• For a literary work in book form: the date the actual writing of the book began.
• For a computer program, that may include a videogame: the date the writing of the program began; or, the date the images of the visual aspect of the videogame began to be fixed.
• For an advertising or marketing photograph: the date the photograph, or the first photograph within a unit to be published, was taken.

Both the month and year must be given; the day date is optional. If you do not know the exact date, give your closest approximation and check the “Approximate” box.

(2) Date of anticipated completion.

This should be the date or approximate date on which you anticipate finishing the work in the form intended for commercial distribution. If the work has already been substantially completed except for final editing, give the anticipated date of final editing. Both the month and year must be given; the day date is optional. If you do not know the exact date, give your closest approximation and check the “Approximate” box.

(3) Date of anticipated commencement of commercial distribution.

This should be the date or the approximate date you believe that copies or phonorecords of the work, in its complete and finished form, will be distributed to the public. The year date must be given; the day date and month are optional. If you are not sure of the exact date, give your closest approximation and check the “Approximate” box.

Description of the Work.

Because preregistration is not a form of registration but is simply an indication of an intent to register a work once the work has been completed and/or published, there is no deposit requirement. However, to identify the particular work for which preregistration is sought, a description of the work is required. This description should be as detailed and specific as possible, so that a court in a copyright infringement action can be satisfied that the allegedly infringed work is in fact the work described in the application. The description cannot exceed 2,000 characters (approximately 330 words).

• For a motion picture: Describe the work in terms of the subject matter it treats, and/or give a plot summary or outline. Include the director and major actors, as well as the principal location of filming, if known, and give any other details that would assist in identifying the particular motion picture.
• For a sound recording: Describe the work in terms of the subject matter of the underlying work recorded and include the genre; for example, hip hop, hard rock, classical, etc. Identify the performers and the principal recording location, if known, as well as the record label, if known; give any other characteristics of the recording that may help in identifying the particular recording.
• For musical composition(s) performed in a sound recording or in a movie soundtrack: Describe the subject matter of the lyrics, if any, and identify the genre of the work; for example, hip hop, hard rock, classical, etc. Identify the performers and principal recording location, if known, as well as the record label or motion picture, if known. Provide any other details or characteristics that would assist in identifying the particular musical composition(s).
• For a literary work in book form: Identify the genre of the book, (e.g., biography, novel, history). Describe the work in terms of the subject matter that it treats, for example, the biography of a public figure and the general approach to the biographic subject; a novel in a series of novels having a continuation of theme, plot, and characters. Identify any salient characteristics of the book, (e.g., whether it is a later edition or revision of a previous work); and give any other detail which may assist in identifying the literary work in book form.
• For a computer program, that may include a videogame: Describe the nature, purpose, and function of the computer program, including information such as its approximate length (if known), any particular organization or structure in which the program has been created; any information concerning the computer language in which it is written; the form in which it is expected to be published, (e.g., as an online-only product); the version, if known, which is expected to be the published version. If the work is a videogame, also describe the subject matter of the videogame and the overall object, goal or purpose of the game, its characters, if any, and the general setting and surrounding found in the game.
• For an advertising or marketing photograph: Describe the subject matter depicted in the photograph(s). This would include information such as the particular product, event, public figure, or other item or occurrence that the photograph is meant to advertise or market. To the extent possible, give additional details that will assist in identifying the particular photographs, such as the party for whom such advertising photographs are taken; the approximate time periods during which the photographs are taken; the approximate number of photos that may be included in the grouping; the physical setting or surrounding depicted in the photographs. Also explain the general presentation, (e.g., lighting, background scenery, positioning of elements of the subject matter) as it is seen in the photograph(s). Provide any locations and events, if applicable, associated with the photographs.

*Note: This publication is simply the opinion of the author and should not be construed as legal advice.*

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