Monday, September 01, 2014

Keys To Copyright's Kingdom: A New Glossary For Copyright Claimants, Lawyers and Judges To Decipher Copyright Office Practices

  The Copyright Office has published a  draft of its next Compendium of U.S. Copyright Office Practices (Third Edition).   Although styled a “compendium” this document is much more ambitious and far-reaching than its title suggests and will become an invaluable resource for the public, the courts, and particularly for legal practitioners who seek to protect their clients.   For litigators, it will prove an invaluable tool for understanding why and how copyright claims are registered (or not) and how to properly prepare for potential litigation by ensuring that a client’s copyright claims are  properly documented before going to court.

The Compendium, found here at the Copyright Office website– is described as:  a living, electronic document accessible on the official website of the U.S. Copyright Office. The Office publishes regular revisions, as  appropriate, to reflect changes in the law and/or practices, which customers may access, download, or print. The version posted on the Office’s website at any given time should be consulted as the current official version. The Office maintains an archive of all revisions so released, as well as prior versions.

The Compendium’s Glossary
This Glossary provides brief definitions for certain terms as they apply to registration,  recordation, and other services provided by the U.S. Copyright Office. Definitions that are taken directly from the Copyright Act or the Office’s regulations are enclosed in quotation marks. Definitions that are not enclosed in quotation marks are not legal definitions; they are intended to educate and inform legal practitioners and members of the public who file applications, record documents, and conduct other business with the Office. 

1909 Copyright Act:

An Act to Amend and Consolidate the Acts Respecting Copyright, Pub. L. No. 60-349, 35 Stat. 1075 (1909).  This law as amended was the copyright law of the United States from July 1, 1909 through December 31, 1977. It was repealed effective January 1, 1978 and replaced with the 1976 Copyright Act.

1976 Copyright Act:

Public Law No. 94-553, 90 Stat. 2541 (1976). Passed by Congress and effective on January 1, 1978, this law as amended is the current Copyright Law of the United States. It is codified in Title 17 of the U.S. Code. 

Abridgement:

 A shortened or condensed version of a preexisting work that retains the general sense and unity of the preexisting work. 

Act:

 See “1976 Copyright Act.”

Annotation:

 A statement that the U.S. Copyright Office adds to the registration record to clarify the facts underlying the claim or to identify legal limitations on the claim. To “annotate” means to add an annotation to the record. 

Annotation:

 “An ‘anonymous work’ is a work on the copies or phonorecords of which

no natural person is identified as author.” 17 U.S.C. § 101.

Appeal:

See “request for reconsideration.”

Applicant:

 The party who submits an application to the U.S. Copyright Office.

Architectural work:

 “An ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” 17 U.S.C. § 101. The U.S. Copyright Office registers as architectural works designs for structures that can be inhabited by humans or are otherwise intended for human occupancy. Examples include houses, office buildings, churches, museums, gazebos, and garden pavilions.  

Audiovisual work:

 “‘Audiovisual works’ are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” 17 U.S.C. § 101. In other words, the term “audiovisual works” refers broadly to any work that includes any series of related visual images, whether or not moving, and with or without sounds, as long as a machine or device is essential to the viewing of therelated series of images. 

Authorized agent:

 Any person entitled to act on behalf of an author, a copyright claimant, or an owner of one or more of the exclusive rights. 

Author Created:

The portion of the online application that identifies the copyrightable material created by the author named in the application. In the paper application, this portion of the application is referred to as the “Nature of Authorship” space.

Authorshipstatement:

 The portion of the application that describes the copyrightable material created by the author named in the application. In the online application, this portion of this statement typically appears in the Author Created field and/or New Material Included field. In the paper application it typically appears in the Nature of Authorship space and/or the Material Added to This Work space.

Automated database:

 See “database.”

Basic registration:

 A registration issued on or after January 1, 1978. 

BerneConvention:

 An international treaty, the “Convention for the Protection of Literary and Artistic Works,” to protect literary and artistic works signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto.  The United States acceded to the Berne Convention and became a member on March 1, 1989.

Best edition:

 “The ‘best edition’ of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.” 17 U.S.C. § 101.

Board:

See “Review Board.”

Certificate of registration:

 An official record issued by the U.S. Copyright Office that bears the U.S. Copyright Office seal and the signature of the Register of Copyrights. The certificate denotes the fact that the Office has received a valid claim to copyright (i.e., an acceptable application, deposit, and filing fee) and that the claim has been registered by the Office. The certificate shows the registration number and date that the registration is effective. Provided the claim is registered before the work is published or within five years of the date on which the work is first published, the facts on a certificate of registration and the validity of the copyright are presumed true by courts of law unless later shown to be false.

Certification:

 1) The act of signing an application to register a work with the U.S. Copyright Office. The individual who signs the application certifies that the information provided therein is correct to the best of his or her knowledge. 2) The preparation of a statement under the seal of the U.S. Copyright Office attesting to the authenticity of a record or report based on a search of the Office’s records; a type of copyright service available for a fee. For certifications provided in connection with the recordation of a transfer of copyright ownership or other documents pertaining to copyright, see “sworn certification” and “official certification.” 

Choreographic works:

 The term “choreography” is derived from the Greek words “choreia,”

 meaning “dance,” and “graphikos,”meaning “to write.” A dance is a static and kinetic succession of bodily movements in certain rhythmic and spatial relationships and in relation to time and space. Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.

Choreography is not synonymous with dance. It is a discrete subset of dance thatencompasses certain types of compositional dances. For example, the legislative history for the 1976 Copyright Act states that “‘choreographic works’ do not include social dance steps and simple routines.” See H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667; S.REP. NO. 94-473, at 52 (1975). 

Claim:

 An assertion of ownership of the copyright in a work of authorship. A request to register a work of authorship with the U.S. Copyright Office.  

Claimant:

 For purposes of copyright registration, the claimant is either the author of the work that has been submitted for registration, or a person or organization that owns all of the rights under copyright that initially belonged to the author of that work. 

Collective work:

 “A ‘collective work’ is a work, such as a periodical issue, anthology, or  encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101. A collective work is a form of compilation.

Compilation:

 “A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ‘compilation’ includes collective works.” 17 U.S.C. § 101.

Compulsory license:

See “statutory license.”

Computer:

 A programmable electronic device that can store, retrieve, and process data  that is input by a user through a user interface, and is capable of providing output through a display screen or other external output device, such as a printer. “Computers” include mainframes, desktops, laptops, tablets, and smart phones.

Computer program:

 “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.” 17 U.S.C. § 101.

Copies:

 “‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed.” 17 U.S.C. § 101.

Copyright Act:

 See “1976 Copyright Act.”

Copyright Card Catalog:

 A physical archive located at the U.S. Copyright Office that may be used to search for completed registrations and recorded documents made before January 1, 1978.

Copyright claimant:

 See “claimant.”

Copyright notice:

 A statement placed on copies or phonorecords of a work to inform the public that a copyright owner is claiming ownership of the particular work. A copyright notice consists of three elements: 

• The copyright symbol © (or for phonorecords, the symbol

), the word “Copyright”, or the abbreviation “Copr.”;

• The year of first publication of the work; and 

• The name of the copyright owner. 

A copyright notice is no longer legally required to secure copyright on works first

published on or after March 1, 1989, although it does provide legal benefits.

Copyrightable:

 A term used to describe a work that is original and sufficiently creative  to be registered with the U.S. Copyright Office.

Database:

 For purposes of copyright registration, a database is defined as a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects. In all cases, the content of a database must be arranged in a systematic manner and it must be accessed by means of an integrated information retrieval program or system with the following characteristics: (i) a query function must be used to access the content; and (ii) the information retrieval program or system must yield a subset of the content or it must organize the content based on the parameters specified in each query. 

Date of recordation:

 1) For the recordation of transfers of copyright ownership and other documents pertaining to copyright under Section 205 of Title 17 of the United States Code, “[t]he date of recordation is the date when a proper document under [37 C.F.R. § 201.4(c)] and a proper fee under paragraph (d) of this section [37 C.F.R. § 201.4]  are all received in the Copyright Office.” 37 C.F.R. § 201.4(e). 2) For the recordation of a

notice of termination under Sections 203, 304(c), or 304(d) of Title 17 of the United  States Code, “[t]he date of recordation is the date when all of the elements required for recordation, including the prescribed fee and, if required, the statement referred to in [37 C.F.R. § 201.10(f)(1)(ii)], have been received in the Copyright Office.” 37 C.F.R. § 201.10(f)(3). 3) For the recordation of a Visual Arts Registry Statement “[t]he date of recordation is the date when all of the elements required for recordation, including the prescribed fee, have been received in the Copyright Office.” 37 C.F.R. § 201.26(e).

De minimis:

 A legal term that is based on the Latin phrase “de minimis non curat lex,” which means “the law does not take notice of very small or trifling matters.” Creative authorship is deemed “de minimis”

 when a work does not contain the minimal degree of original, creative expression required to satisfy the test for originality in copyright.  

Deposit:

See “deposit copy.”

Deposit account:

 A standing account with the U.S. Copyright Office from which customers can draw funds to pay for services provided by the Office. 

Deposit copy:

 A physical or electronic embodiment of a work. A deposit copy may be on or in various media (

e.g.,paper, videotape, online digital code, etc.) and may consist  of multiple components. A deposit copy is submitted with an application for registration and must conform to the U.S. Copyright Office’s regulations and other requirements. For copyright registration purposes, the deposit copy should be clear and should contain all of the authorship that the applicant intends to register. 

Deposit copies:

 The plural form of “deposit copy.”

Deposit copy(ies):

 A term meaning “deposit copy” and/or “deposit copies.”

Derivative:

See “derivative work.”

Derivative work:

 “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’” 17  U.S.C. § 101.

Display:

 “To ‘display’ a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” 17 U.S.C. § 101.

Document pertaining to copyright:

“A document shall be considered to  ‘pertain to a copyright’ if it has a direct or indirect relationship to the existence, scope, duration, or identification of a copyright, or to the ownership, division, allocation, licensing, transfer, or exercise of rights under a copyright. That relationship may be past, present, future, or potential.” 37 C.F.R. § 201.4(a)(2). 

EDR:

An abbreviation for “effective date of registration.”

Effective Date of Registration (“EDR”):

“The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office.” 17 U.S.C. § 410(d). The effective date of registration is the date assigned by the U.S. Copyright Office that corresponds with the date the Office received all the elements required for a registration in acceptable form, namely, (i) a completed application, (ii) the full nonrefundable filing fee, and (iii) a complete nonreturnable deposit.

Eligible country:

 “The term ‘eligible country’ means a nation, other than the United States, that— 

 (A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act;

(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention;

 (C) adheres to the WIPO Copyright Treaty;

 (D) adheres to the WIPO Performances and Phonograms Treaty; or

 (E) after such date of enactment becomes subject to a proclamation under [17 U.S.C. §

104A] subsection (g).”   17 U.S.C. § 104A(h)(3).

Exclusive license:

An exclusive license is “a license that gives the licensee the sole right to perform the licensed act, often in a defined territory, and that prohibits the licensor from performing the licensed act and from granting the right to anyone else; [especially], such a license of a copyright, patent, or trademark right.”  BLACK’S LAW DICTIONARY 1003 (9th ed. 2009).

 

Exclusive rights:

 Any or all of the exclusive rights under Copyright Law, as set forth in Section 106 of the Copyright Act. Section 106 of the Copyright Act defines the exclusive  rights of copyright owners in their works. Only the copyright owner has the right to do and to authorize the following:

1.“To reproduce the copyrighted work in copies or phonorecords.”

2.“To prepare derivative works based upon the copyrighted work.”

3.“To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

4.“In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.”

5.“In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.”

6.“In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

17 U.S.C. § 106.

These rights are subject to certain limitations that are defined in Sections 107 through 122 of the Copyright Act.

Filing fee:

 A nonrefundable charge for processing a registration or document recordation request.

Fixation:

 See “fixed.”

Fixed:

 “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a  copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission.” 17 U.S.C. § 101.

Foreign work:

 A work that is not a United States work. 

Form:

 A printed document designed and issued by the U.S. Copyright Office for use in applying for registration and requesting certain other copyright services.

Form CA:

 A paper application used to submit an application for a supplementary registration.

Used to correct an error or omission in a basic registration and/or to amplify the information set forth in a basic registration.

Form CO:

 Previously used to file claims to copyright, the fill-in Form CO had to be completed on a computer, printed, and mailed to the Office with the proper fee and deposit and a handwritten signature.

Form CON:

A continuation sheet used only in conjunction with Form CA, Form PA, Form SE, Form SR, Form TX, or Form VA.

Form G/DN:

A paper application used to register a group of daily newspapers or daily

newsletters. 

Form GATT:

A paper application used to register a restored copyright under the 1994 Uruguay Round Agreements Act. 

Form GATT/CON:

 A continuation sheet used only in conjunction with Form GATT or

Form GATT/GRP.  

Form GATT/GRP:

A paper application previously used to register a claim to copyright

in a group of related works restored under the 1994 Uruguay Round Agreements Act. 

Form GR/CP:

A paper application used in conjunction with Form TX, Form PA, or Form VA for registering a group of contributions to a periodical or newspaper.

Form GR/PPh/CON:

An optional continuation sheet used in conjunction with Form VA  for registering a group of published photographs.

Form MW:

 

A paper application used to register a mask work fixed in a semiconductor chip product under the Semiconductor Chip Protection Act of 1984.

Form MW/CON:

A continuation sheet used only in conjunction with Form MW.

Form PA:

A paper application used to register certain types of works of the performing  arts, namely musical works, dramatic works, pantomimes, choreographic works, motion pictures, and other audiovisual works.

Form SE:

A paper application used to register a single issue of a published or unpublished serial.  

Form SE/GROUP:

 A paper application used to register a group of related serials. 

Form SR:

A paper application used to register works that contain sound recording authorship. An applicant should use Form SR if the work contains sound recording authorship and if the applicant intends to register that element of the work (even if the work also contains other types of authorship, such as music or lyrics). If the applicant does not intend to register sound recording authorship, the applicant should not use this form (even if the work happens to contain one or more sound recordings). Likewise, the applicant should not use the form if the applicant intends to register the sounds accompanying a motion picture or other audiovisual work.

Form TX:

A paper application used to register a nondramatic literary work, such as  fiction, nonfiction, poetry, an individual article, a textbook, a reference work, a directory, a catalog, advertising copy, a compilation of information, a computer program, a textual work made available online, or a database.

Form VA:

A paper application used to register architectural works and pictorial, graphic, or sculptural works, including two-dimensional or three-dimensional works of fine, graphic, and applied art, photographs, prints or art reproductions, maps, and technical drawings.

GATT:

An abbreviation for “General Agreement on Tariffs and Trade.” 

General Agreement on Tariffs and Trade (“GATT”):

 An agreement which, in part restores copyright protection for certain foreign works that have lost copyright in the United States. The loss of copyright would have occurred for one of the following

reasons:

1.Failure to comply with certain “formalities” of United States law. These formalities include:

i.publication without notice prior to March 1, 1989.

ii.failure to renew an old law work within the time limit that applied to that work.

iii.failure to comply with the provisions of the “manufacturing clause.”

2.Lack of subject matter protection in the case of sound recordings fixed before  February 15, 1972.   

3.Lack of national eligibility.  Registration using Form GATT can be for a “single work” or for a “series of works published under a single title in multiple episodes, installments, or issues during the  same calendar year.” GATT/Group registration, which allowed a broader scope for group registration, was eliminated effective July 1, 2006.

GATT registration:

 Registrations that cover copyright claims in a work in which U.S. copyright was restored under the 1994 Uruguay Round Agreements Act. 

Graphic works:

See “pictorial, graphic, and sculptural works.”

Group registration:

An option for registering a group of works with one application, one filing fee, and one set of deposit copies. The U.S. Copyright Office currently offers group registration options for the following classes of works: 

• Serials.

• Daily newspapers. 

• Daily newsletters. 

• Contributions to periodicals. 

• Published photographs.

• A group of updates or revisions to a database.

ID material:

 An abbreviation for “identifying material.”

Identifying material (“ID material”):

 An alternative deposit copy permitted or required under U.S. Copyright Office regulations for registration, such as photographs submitted in lieu of three-dimensional works of visual arts; redacted versions of secure tests; portions of computer source code, etc. Identifying material is material that adequately represents the authorship claimed in an unpublished or published work, whether the

regulations permit a substitute or whether it is a required substitute for the actual work, as in the case of most three-dimensional visual arts works.  

Infringement:

Infringement occurs when someone other than the copyright owner exercises the exclusive right of the copyright owner unlawfully. Certain limitations to the owner’s rights are defined in Sections 107 through 122 of the Copyright Act.

ISBN:

An abbreviation for “International Standard Book Number.”

International Standard Book Number (“ISBN”):

A unique identifier assigned to a monographic publication by designated agencies in each country participating in the program. The U.S. Copyright Office does not assign these numbers to published works.

In the United States, ISBNs are administered by R.R. Bowker LLC (www.bowker.com).

ISRC:

An abbreviation for “International Standard Recording Code.”

International Standard Recording Code (“ISRC”):

A unique identifier assigned to a sound recording by designated agencies in each country participating in the program.

The U.S. Copyright Office does not assign these numbers to published works. In the  United States, ISRCs are administered by the Recording Industry Association of America (www.usisrc.org).

ISSN:

An abbreviation for “International Standard Serial Number.”

International Standard Serial Number (“ISSN”):

A unique identifier assigned to a serial publication by national centers under the auspices of the ISSN network. The U.S. Copyright Office does not assign these numbers to published works. In the United States, ISSNs are administered by the Library of Congress (www.loc.gov/issn).

Joint work:

 “A ‘joint work’ is a work prepared by two or more authors with the

intention that their contributions be merged into inseparable or interdependent parts of

a unitary whole.” 17 U.S.C. § 101.  

License:

 An agreement by which a party grants another party one or more rights (but fewer than all rights), usually limited to a particular territory and/or time period. A license may be granted as an exclusive license or a nonexclusive license. 

Licensing Division:

 The Licensing Division in the U.S. Copyright Office administers certain statutory licenses set forth in the Copyright Act. The Division collects royalty payments and examines statements of account for the cable statutory license (17 U.S.C. § 111), the satellite statutory license for retransmission of distant television broadcast stations (17 U.S.C. § 119), and the statutory license for digital audio recording  technology (17 U.S.C. chapter 10). The Division also accepts and records documents associated with the use of the mechanical statutory license (17 U.S.C. § 115). The Division deducts its full operating costs from the royalty fees and invests the balance in interest-bearing securities with the U.S. Treasury for later distribution to copyright owners. For further information see  Circular 75, The Licensing Division of the Copyright Office (www.copyright.gov/circs/circ75.pdf).

Limitation of claim:

The portion of the application that identifies copyrightable material that has been excluded from the claim. It is typically used to exclude previously published material, previously registered material, public domain material, and/or material that is not owned by the claimant named in the application. In the online application, this portion of the application includes the Material Excluded and Previous Registration fields. In the paper application, this portion of the application includes the Previous Registration and Preexisting Material spaces.

Literary works:

“‘Literary works’ are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” 17 U.S.C. § 101. A literary work is a nondramatic work that explains, describes, or narrates a particular subject, theme, or idea through the use of narrative, descriptive, or explanatory text, rather than dialog or dramatic action. Generally, nondramatic literary works are intended to be read; they are not intended to be performed before an audience. Examples of nondramatic literary works include the following types of works: fiction, nonfiction, poetry, directories, catalogs, textbooks, reference works, advertising copy, compilations of information, computer programs, databases, and other textual works.

Mandatory deposit copy:

 A deposit copy sent to the U.S. Copyright Office pursuant to Section 407 of the Copyright Act. Section 407 provides that the owner of copyright or the owner of the exclusive right of publication in a work published in the United States shall deposit two copies or phonorecords of the best edition of the work within three months after publication for the benefit of the national collection of the Library of Congress. 17 U.S.C. § 407. The deposit of a published work that is acceptable under Section 408 also may satisfy the deposit requirements of Section 407.

Manufacturing clause:

Section 601 of the 1976 Copyright Act, which was repealed by the Copyright Cleanup, Clarification, and Corrections Act of 2010. Prior to 1986, United  States authors who claimed copyright in magazines, newspapers, and books published  and printed in the English language were required to indicate that the work was manufactured in the United States or Canada in order the satisfy the requirements of the manufacturing clause.

Mask work:

 “A ‘mask work’ is a series of related images, however fixed or encoded — (A) having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product; and (B) in which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product.” 17 U.S.C. § 901(a)(2). A three-dimensional design formed on or in the layers of a semiconductor chip. This term does not apply to sculptural masks. Mask works are protected under the Semiconductor Chip Protection Act of 1984 and may be registered by the U.S. Copyright Office.

Motion pictures:

 “‘Motion pictures’ are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” 17 U.S.C. § 101. The definition of “motion pictures” does not include the following: 

• Unauthorized fixations of live performances or telecasts. 

• Live telecasts that are not fixed simultaneously with their transmission.

• Filmstrips and slide sets which, although consisting of a series of images intended to  be shown in succession, are not capable of conveying an impression of motion. 

See H.R. REP. NO. 94-1476 at 56 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5669.

Nature of Authorship:

 The portion of a paper application that identifies the copyrightable material created by the author named in the application. In the online application, this portion of the application is referred to as the “Author Created” field.

Nonexclusive license:

 A nonexclusive license is “a license of intellectual property rights that gives the licensee a right to use, make, or sell the licensed item on a shared basis with the licensor and possibly other licensees.” BLACK’S LAW DICTIONARY 1004 (9th ed. 2009).

Notice:

 See “copyright notice.”

Object code:

 A representation of a computer program that is written in a machine language consisting of binary code (i.e.,ones and zeroes). Object code is comprehensible to a computer or other electronic device, but as a general rule, it is not comprehensible to human beings. 

Official certification:

 “An official certification is a certification, by the appropriate Government official, that the original of the document is on file in a public office and that the reproduction is a true copy [of] the original.” 37 C.F.R. § 201.4(a)(3)(ii) (italics omitted). 

Online public record:

The database posted on the U.S. Copyright Office’s website containing records relating to registrations and document recordations issued after 1978 (cocatalog.loc.gov/cgibin/Pwebrecon.cgi?DB=local&PAGE=First).  Also known as the Public Catalog.

Pantomime:

 The art of imitating, presenting, or acting out situations, characters, or events through the use of physical gestures and bodily movements. 

Perform:

“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101.

Phonorecords:

“‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.” 17 U.S.C. § 101.

Pictorial works:

 See “pictorial, graphic, and sculptural works.”

Pictorial, graphic, and sculptural works:

 “‘Pictorial, graphic, and sculptural works’ include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and  technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.

Preregistration:

 A procedure that allows certain copyright owners to file an action for infringement and to seek statutory damages and attorney’s fees in cases where the work was infringed before the copyright owner completed the work and released it to the

public. Preregistration is entirely optional. It is neither a prerequisite nor a precondition for copyright owners who wish to register their works with the U.S. Copyright Office. In other words, an original work of authorship may be registered regardless of whether the work has been preregistered or not. Copyright owners may benefit from this procedure if they have started to create a work of authorship that has not been completed yet, and if it is likely that a third party may infringe that work before it has been released to the public. But in order to preserve the benefits of this procedure, the copyright owner must seek an actual registration for the work shortly after it has been published or infringed. For the vast majority of copyright owners, preregistration is not useful. To be eligible for preregistration, a work of authorship must fall within one or more of the following classes of works: (i) motion pictures; (ii) sound recordings; (iii) musical compositions; (iv) literary works being prepared for publication in book form; (v) computer programs (including videogames); or (vi) advertising or marketing photographs. Works that do not fall within these classes are not eligible for this procedure.

Pseudonymous work:

 “A ‘pseudonymous work’ is a work on the copies or phonorecords of which the author is identified under a fictitious name.” 17 U.S.C. § 101.

Publication:

 “‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101.

Public Catalog:

See “online public record.”

Public display:

 See “public performance and public display.” 

Public domain:

 A work of authorship that is not protected by copyright is in the public domain. In the United States, a copyrighted work enters the public domain when its full copyright term has expired. In addition, works published in the United States without a copyright notice on or before March 1, 1989 may be in the public domain, and works registered or published in the United States on or before December 31, 1963 may be in the public domain if the copyright was not renewed in a timely manner. The status of a creative work which, through expiration of term or failure to comply with statutory formalities, is not protected by copyright.

Publicly:

 See “public performance and public display.” 

Public performance:

See “public performance and public display.”

Public performance and public display:

 “To perform or display a work ‘publicly’ means

1. to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

2.to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  17 U.S.C. § 101.

Public record:

 Official records maintained by the U.S. Copyright Office relating to registrations and document recordations, which are made available to the public through the Office’s website, the Copyright Card Catalog, the Catalog of Copyright  Entries,or the Records, Research and Certification Section.

Recordation:

Recordation is the official filing in the public records of the U.S. Copyright Office of a document having to do with copyright. The purpose of recordation is to make a public record of the facts in the document.  

Recordation specialists:

 Members of the U.S. Copyright Office’s Recordation Section who are responsible for recording documents.

Register of Copyrights:

The Register of Copyrights is the Director of the U.S. Copyright Office. By statute, the Register works under the general direction of the Librarian of Congress and carries out a variety of legal and policy functions that are enumerated throughout Title 17. 

Registration:

 “‘Registration,’ for purposes of Sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e) [of the 1976 Act] means a registration of a claim in the original or the renewed and extended term of copyright.” 17 U.S.C. § 101. The principle function performed by the U.S. Copyright Office under the provisions of Section 408 of the Copyright Law. The process for putting a claim on record in the U.S. Copyright Office; a type of copyright service available for a fee. Registration is a possible result of the U.S. Copyright Office’s examination of an application to register a claim of copyright in an original work of authorship. Registration involves examining the claim, and if the claim is approved by the U.S. Copyright Office, numbering the claim, issuing a certificate of registration, and creating a public record. 

Registration materials:

A public record maintained by the U.S. Copyright Office. It includes all the materials that an applicant submits to the Office in connection with an application to register a claim to copyright, including the application, deposit copy(ies), and the filing fee, as well as any communications between the applicant and the Office

relating to that claim.

Registration specialists:

 Members of the U.S. Copyright Office’s Registration Program

who are responsible for examining claims to copyright.

Remitter:

The party who submits a document to the U.S. Copyright Office for

recordation. 

Renewal:

 

See “renewal claim.”

Renewal claim:

 

An assertion of ownership for the second term of copyright in a work of

authorship originally published or registered under the 1909 Act; when filed with the

U.S. Copyright Office, a renewal claim presents a request for registration. For works

copyrighted between January 1, 1964 and December 31, 1977, renewal is automatic but

registration confers certain benefits.  

Renewal registration:

See

“renewal claim.”  

Request for reconsideration:

 A

request for reconsideration to the Registration

Program Office or a request for reconsideration to the Review Board is an

administrative review of a refusal to register a claim in copyright by an applicant.

Review Board (also referred to as the “Board”):

A Board consisting of the Register of

Copyrights and the General Counsel of the Copyright Office (or their respective designees) and a third individual designated by the Register that hears second requests for reconsideration of the Registration Program’s decision to refuse to register a claim to copyright.

Scènes à faire:

 A stock character, setting, or event that is common to a particular subject matter or medium. Standard expressions that necessarily follow from the idea for a work of authorship.

Screen displays:

Content generated by a computer program that appears on a computer screen. 

Sculptural works:

See “pictorial, graphic, and sculptural works.”

Secure test:

“A secure test is a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. For these purposes a test is not marketed if copies are not sold but it is distributed and used in such a manner that ownership and control of copies remain with the test sponsor or publisher.” 37 C.F.R. § 202.20(b)(4).

Semiconductor chip product:

 “A ‘semiconductor chip product’ is the final or intermediate form of any product—

 (A)  having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern; and

 (B) intended to perform electronic circuitry functions.”  17 U.S.C. § 901(a)(1).

Serial:

A work that is issued or intended to be issued on an established schedule in successive parts bearing numerical or chronological designations that are intended to be continued indefinitely. Examples include periodicals, newspapers, magazines, newsletters, journals, bulletins, annuals, the proceedings of societies, and other similar works. 

Series of musical, spoken, or other sounds:

A series of musical, spoken, or other sounds connotes a temporal succession of sounds rather than simultaneous sounds, such as those expressed in a chord vertically.

Shipping slip:

 A document generated by the U.S. Copyright Office’s electronic registration system. If the applicant submits a physical copy of a work to the Office, the copy must be accompanied by a shipping slip. Failure to include a shipping slip may

prevent the Office from connecting the deposit copies with the online application and may require the applicant to resubmit the deposit, thereby affecting the effective date of registration.

Sound recordings:

 “‘Sound recordings’ are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.” 17 U.S.C. § 101. 

Source code:

 Source code is a set of statements and instructions written by a human being using a particular programming language, such as Java, LISt Processing, LOGO, PASCAL, Programming Inquiry Learning or Teaching, Programming in Logic, Assembly Language, or other programming languages. Typically, these statements are comprehensible to a person who is familiar with the relevant programming language, but they are not comprehensible to a computer or other electronic device. In order to convey these statements and instructions to a machine, the source code must be converted into object code.

Source country:

 “The ‘source country’ of a restored work is—

 (A)  a nation other than the United States;

(B) in the case of an unpublished work— 

 (i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or

 (ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and

 (C) in the case of a published work— 

 (i) the eligible country in which the work is first published, or

 (ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” 

17 U.S.C. § 104A(h)(8).

Special handling:

 Special handling is a procedure for expediting the examination of a claim to copyright or to record a document. The U.S. Copyright Office offers this service in certain circumstances where a copyright owner or other interested parties have a compelling reason for the expedited issuance of a certificate of registration or certificate of recordation, such as pending or prospective litigation, customs matters, and publication or contract deadlines.

Statutory license:

A right to use certain works if certain statutory requirements are met as required by the Copyright Law.

Sui generis:

 A Latin phrase meaning “of its own kind.” In the context of the copyright law, it refers to classes of works protected under the statute that do not fall within existing categories of legal protection, such as mask works and vessel designs.

Supplementary registration:

 A special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration.” See  17 U.S.C. § 408(d). 

Sworn certification:

 “A sworn certification is an affidavit under the official seal of any officer authorized to administer oaths within the United States, or if the original is located outside of the United States, under the official seal of any diplomatic or consular officer of the United States or of a person authorized to administer oaths whose authority is proved by the certificate of such an officer, or a statement in accordance with section 1746 of title 28 of the United States Code.” 37 C.F.R. § 201.4(a)(3)(i) (italics omitted). A sworn statement verifying that a photocopy or other reproduction of a signed document is a true copy of the original. 

Transfer:

See “transfer of copyright ownership.”

Transfer of copyright ownership:

 “A ‘transfer of copyright ownership’ is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.” 17 U.S.C. § 101.

Transfer statement:

 A brief statement in an application for registration that explains how the claimant obtained ownership of the copyright.

Translation:

 A rendering of a work of authorship from one language into another, such as a work that has been translated from English into Spanish, from German into English, or from Hindi into Malayalam.

Treaty party:

 “A ‘treaty party’ is a country or intergovernmental organization other than the United States that is a party to an international agreement.” 17 U.S.C. § 101.

Unclaimable material:

 For purposes of copyright registration, “unclaimable material” includes (i) previously published material; (ii) previously registered material; (iii)

material that is in the public domain; and/or (iv) copyrightable material that is not owned by the claimant named in the application. If a work contains an appreciable amount of unclaimable material, the applicant should exclude that material from the claim.

United States work:

 “For purposes of section 411 [of the 1976 Act], a work is a ‘United States work’ only if—

1. in the case of a published work, the work is first published— 

(A) in the United States;

(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not a treaty party; or

(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;

2. in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or

3.in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.”

A registration accommodation by the U.S. Copyright Office for registering multiple works with one application, one filing fee, and one set of deposit copies when the works are packaged together for distribution to the public, and where the works claimed are first published in that unit.

Unpublished:

 See “unpublished work.”

Unpublished collection:

 A registration accommodation by the U.S. Copyright Office for registering a number of unpublished works with one application, one filing fee, and one set of deposit copies.

Unpublished work:

A work for which publication, as defined in the Copyright Law, has not occurred.

URAA:

An abbreviation for “Uruguay Round Agreements Act.”

Uruguay Round Agreements Act (“URAA”):

Legislation that includes an agreement on the Trade-Related Aspects of Intellectual Property under the General Agreement on Tariffs and Trade.  Signed into law December 8, 1994.

 Uruguay Round General Agreement on Tariffs and Trade (“GATT”):

 See “General Agreement on Tariffs and Trade (GATT).”

Useful article:

“A ‘useful article’ is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a ‘useful article.’” 17 U.S.C. § 101.

Vessel design:

 A design of a frame or body of a craft that is capable of being independently propelled and steered through water, and is designed to carry or transport one or more passengers.  Vessel designs received design protection (not copyright protection) in 1998 pursuant to the Vessel Hull Design Protection Act of 1998 and may be registered with the U.S. Copyright Office.

Visual arts works:

The U.S. Copyright Office uses the term “visual arts works” to collectively refer to “pictorial, graphic, and sculptural works” and “architectural works.”

Work of visual art:

 “A ‘work of visual art’ is—

1.a painting, drawing, print or sculpture, existing in a single copy, in a limited edition  of 200 copies or fewer that are signed and consecutively numbered by the author,  or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

2.a still photographic image produced for exhibition purposes only, existing in a single  copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include— 

(A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii)  any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B)  any work made for hire; or

(C)  any work not subject to copyright protection under this title.”

17 U.S.C. § 101. “Works of visual art” is a specific class of works that are eligible for protection under the Visual Artists Rights Act.

Widow or widower:

 “The author’s ‘widow’ or ‘widower’ is the author’s surviving spouse under the law of the author’s domicile at the time of his or her death, whether or not the spouse has later remarried.” 17 U.S.C. § 101.

WIPO:

An abbreviation for “World Intellectual Property Organization.”

Work of the United States Government:

“A ‘work of the United States Government’ is a work prepared by an officer or employee of the United States Government as part of  that person’s official duties.” 17 U.S.C. § 101.

Work made for hire:

 “A ‘work made for hire’ is— 

1.a work prepared by an employee within the scope of his or her employment;  or

2.a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ‘instructional text’ is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.”

In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment— (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.” 17 U.S.C. §101.

Works of the Performing Arts:

 For purposes of copyright registration, the U.S. Copyright Office uses the term “works of the performing arts” to refer collectively to the following works of authorship: musical works, including any accompanying words; sound recordings; dramatic works, including any accompanying music; choreographic works; pantomimes; audiovisual works; and motion pictures. “This class includes all published and unpublished works prepared for the purpose of being performed directly before an audience or indirectly by means of a device or process.” 37 C.F.R. § 202.3(b)(ii).  

Works of the VisualArts:

See “Visual art works.”

World Intellectual Property Organization (“WIPO”):

 A specialized agency of the United Nations that administers intellectual property matters of concern to the member States of the United Nations in order to ensure that the rights of creators and owners of intellectual property are protected worldwide and that inventors and authors are, thus, recognized and rewarded for their ingenuity.

WTO:

An abbreviation for “World Trade Organization.”

Do you have any comments to the Compendium that you would like to share with the Copyright Office?  Visit www.copyright.gov for more information.

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Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd Copyright Litigation Handbook on Westlaw