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 It was repealed effective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.
www.dunnington.com
Copyright law, fine art and navigating the courts. All practice, no theory.
Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd 
1.jpg)