System of a Down's Mezmerize on Amazon.com
The Code of Federal Regulations provides for "supplementary registration" in the following cases:
§201.5 Corrections and amplifications of copyright registrations; applications for supplementary registration. (a) General. (1) This section prescribes conditions relating to the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration, under section 408(d) of title 17 of the United States Code, as amended by Pub. L. 94-553. For the purposes of this section: (i)
A basic registration means any of the following:
(A) A copyright registration made under sections 408, 409, and 410 of title 17 of the United States Code, as amended by Pub. L. 94-553;
(B) a renewal registration made under section 304 of title 17 of the United States Code, as so amended;
(C) a registration of claim to copyright made under title 17 of the United States Code as it existed before January 1, 1978; or
(D) a renewal registration made under title 17 of the United States Code as it existed before January 1, 1978; and
(ii) A supplementary registration means a registration made upon application under section 408(d) of title 17 of the United States Code, as amended by Pub. L. 94-553, and the provisions of this section.
(2) No correction or amplification of the information in a basic registration will be made except pursuant to the provisions of this § 201.5. As an exception, where it is discovered that the record of a basic registration contains an error that the Copyright Office itself should have recognized at the time registration was made, the Office will take appropriate measures to rectify its error.
(b) Persons entitled to file an application for supplementary registration; grounds of application. (1) Supplementary registration can be made only if a basic copyright registration for the same work has already been completed. After a basic registration has been completed, any author or other copyright claimant of the work, or the owner of any exclusive right in the work, or the duly authorized agent of any such author, other claimant, or owner, who wishes to correct or amplify the information given in the basic registration for the work may file an application for supplementary registration. n1 n1 If the person who, or on whose behalf, an application for supplementary registration is submitted is the same as the person identified as the copyright claimant in the basic registration, the Copyright Office will place a note referring to the supplementary registration on its records of the basic registration.
(2) Supplementary registration may be made either to correct or to amplify the information in a basic registration. For the purposes of this section:
(i) A correction is appropriate if information in the basic registration was incorrect at the time that basic registration was made, and the error is not one that the Copyright Office itself should have recognized;
(ii) An amplification is appropriate: (A) To supplement or clarify the information that was required by the application for the basic registration and should have been provided, such as the identity of a co-author or co-claimant, but was omitted at the time the basic registration was made, or
(B) To reflect changes in facts, other than those relating to transfer, license, or ownership of rights in the work, that have occurred since the basic registration was made.
(iii) Supplementary registration is not appropriate:
(A) As an amplification, to reflect a change in ownership that occurred on or after the effective date of the basic registration or to reflect the division, allocation, licensing or transfer of rights in a work; or
(B) To correct errors in statements or notices on the copies of phonorecords of a work, or to reflect changes in the content of a work; and
(iv) Where a basic renewal registration has been made for a work during the last year of the relevant first-term copyright, supplementary registration to correct the renewal claimant or basis of claim or to add a renewal claimant is ordinarily possible only if the application for supplementary registration and fee are received in the Copyright Office within the last year of the relevant first-term copyright. If the error or omission in a basic renewal registration is extremely minor, and does not involve the identity of the renewal claimant or the legal basis of the claim, supplementary registration may be made at any time. In an exceptional case, however, supplementary registration may be made to correct the name of the renewal claimant and the legal basis of the claim at any time if clear, convincing, objective documentation is submitted to the Copyright Office which proves that an inadvertent error was made in failing to designate the correct living statutory renewal claimant in the basic renewal registration.
In Maxwood v. Malakian, 2010 WL 2010936 (May 18, 2010), SDNY USDJ Sweet analyzed the dilemma of a rock band System of a Down. The facts were roughly these:
Band invites friend to jam while new album being prepared.
Band member wishes to gift a portion of writer's royalties to friend on one song.
Friend thanks band member in writing for 2% gift of writer's royalties.
When credits sent to SONY by band, the gift is mistakenly identified as a writing credit.
SONY files copyright registration with mistake.
Band notices mistake, asks SONY to fix it.
SONY files supplementary registration, but identifies giftee as a "silent writer".
When mistake pointed out again, SONY finally fixes it and gets it right.
Giftee decides he co-wrote song.
Giftee sues friend who gave him gift.
In a 16 page decision, Judge Sweet analyzes evidence presented at trial. The court rejects claims of co-authorship, states emphatically that "mistakes are not admissions" and points out the Copyright Office's procedures to correct errors.
"Evidence in a supplemental registration that rebuts information in an original registration similarly rebuts any presumption accorded the facts on the original registration."
citing Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 165-167 (2d Cir. 2003).
The decision is an excellent primer for musicians on how to keep good records of the creative process. Judge Sweet relied heavily on poetry journals, lyric sheets and spreadsheets created by band members showing writing and royalty splits.
I discuss Copyright Ownership and Licensing Litigation in Chapter 8 of Copyright Litigation Handbook, including disputes over joint authorship.
Purchase Copyright Litigation Handbook from West here
Sunday, June 20, 2010
SDNY: System of a Down: Mistakes in Copyright Registrations and Supplementary Registrations
Labels: copyright law, copyright litigation, copyright registration, federal rules of evidence, lyric sheet, music law, music publishing, poetry journal, supplementary registration, system of a down
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.