Attorney Steve® Copyright Essentials - Pre-registration under 17 U.S.C. 408

Introduction

Pursuant to the provisions of the Artists' Rights and Theft Prevention Act of 2005, the Register of Copyrights, after determining the types of works that have a history of infringement prior to commercial distribution, permits preregistration of such types of unpublished works. 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.

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 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.

Three Pre-Conditions for Copyright Pre-Registration

According to the United States copyright office, a work submitted for preregistration must meet 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  the work must be unpublished;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, computer programs to be sold online
3.  the work must be a type of work determined by the Register to have had a history of infringement prior to authorized commercial distribution. The works determined to be eligible under this requirement are:
    
   • • motion pictures
     • sound recordings
     • musical compositions
     • literary works being prepared for publication in book form
     • computer programs (including video games)
     • advertising or marketing photographs

Types of Works Eligible for Preregistration

Here are some of the works that you may be able to pre-register with the copyright office

Motion Pictures

Definition from the 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, § 808.3(D) :

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:

• 1. creation and fixation of the work in a motion picture format must have already commenced, i.e., filming must have begun
• 2. the claimant in the work can verify that he has a reasonable expectation that the work will be commercially distributed.

Sound Recordings

Definition from the 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, § 803.3:

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:

• 1. at least some of the sounds must already have been fixed in a sound recording medium
• 2. the claimant in the work can verify that he has a reasonable expectation that the work will be commercially distributed

Musical Compositions

Definition From Compendium of Copyright Office Practices, § 802.1; 802.3(A)-(D):

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:

• 1. creation of the musical work and fixation in some tangible medium, such as notated copies or audio recordings, must have commenced
• 2. a performance of the completed musical work will be reproduced in a sound recording or in a sound track of a motion picture which is intended for distribution, either in hard-copy formats or online
• 3. the claimant in the work can verify that he has a reasonable expectation the work will be commercially distributed

Literary Works Being Prepared for Publication in Book Form

Definition from the 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, § 703:

A nondramatic 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:

• 1. creation and fixation of the literary work must have already commenced
• 2. the claimant in the work can verify that he has a reasonable expectation that the work will be commercially distributed in the form of a book

Computer Programs (including videogames)

Definition from the 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, § 721.5:

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:

• 1. creation and fixation of the computer program – i.e., the code – must have already commenced
• 2. the claimant in the work can verify that he has a reasonable expectation that the work will be commercially distributed

Advertising or Marketing Photographs

Definition from the copyright law, 17 U.S.C. § 101:

includes photographs in its definition of “pictorial, graphic and sculptural works.”

From Compendium of Copyright Office Practices, § 909.1:

Original photographic composition capable of supporting [normal] 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:

• 1. 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
• 2. the claimant can verify that he has a reasonable expectation that the photograph will be commercially distributed

NOTE: A claimant may also preregister multiple photographs taken for use in a particular advertising and 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 has a reasonable expectation that at least one of the photographs will be commercially distributed.

More information

Call us to discuss pre-registration of your creative Works.  We can help with copyright registration, DMCA actions, declaratory judgment actions, counter-notifications, software disputes, copyright mediation, copyright small claims (including federal court "opt-out"), and other copyright-related cases.  Call us at (877) 276-5084 or fill out the contact form