The Artists’ Rights and Theft Prevention Act of 2005 permits preregistration of certain types of unpublished works if it determines that such works have a history of infringement prior to commercial distribution. The purpose of preregistration is related to potential litigation protection in view of the fact that it allows an infringement action to be brought before the authorized commercial distribution of a work and the work’s full-fledged registration. Preregistration makes possible—only upon full registration—for the copyright owner to receive statutory damages and attorneys’ fees in an infringement action. We will examine when preregistration applies and some technical specifics for preserving its protections.
What Works Are Covered
According to U.S. copyright law, works determined eligible for copyright preregistration are: motion pictures, sound recordings, musical compositions, literary works being prepared as books, computer programs (including videogames), and advertising or marketing photographs.
Determining Eligibility of Covered Works
Among the eligibility factors for works that are subject to preregistration are the following:
Motion pictures: The act requires that creation and fixation of the work in a motion picture format must have already commenced (i.e., filming must have begun), and that the claimant in the work can verify that he or she has a reasonable expectation that the work will be commercially distributed.
Sound recordings: All sound recordings—including those having musical compositions as well as other types of underlying works, for example spoken poems–are eligible for preregistration. Furthermore, it is required that at least some of the sounds must already have been fixed in a sound recording medium. The expectation of commercial distribution also applies.
Musical compositions:The act requires that creation of the musical work and fixation in some tangible medium—such as notated copies or audio recordings–must have commenced, and that a performance of the completed musical work will be reproduced in a sound recording or in a sound track of a motion picture that is intended for distribution, either in hard-copy formats or online. Expectation of commercial distribution applies here as well.
Literary works being prepared as books: Creation and fixation of the literary work must have already commenced, and the claimant must have a reasonable expectation of commercial distribution—in book form.
Computer programs: Creation and fixation of the computer program—the code—must have already commenced, and the claimant must verify that he or she has a reasonable expectation that the work will be commercially distributed;
Advertising or marketing photographs: As with works cited above, creation and fixation of the advertising or marketing photograph for a product or service must have already begun, although further editing or changes may not yet have occurred. Reasonable expectation of commercial distribution is required. A claimant may preregister multiple photographs—taken for use in a particular advertising and marketing campaign for a particular product or service—if at least some of the photographs have been created and fixed and if the claimant can verify a reasonable expectation that at least one of the photographs will be commercially distributed.
Additional Conditions for Preregistration
Besides the requirement that the work meet the “covered works” criteria listed above, it must also be unpublished and be in the process of being prepared for commercial distribution in either physical or digital format.
Why Undertake Preregistration?
The U.S. Copyright Office stresses that preregistration is not a substitute for full registration and cautions that for the vast majority of works, preregistration is, in fact, not useful. A claimant who preregisters his or her work is still required to register it when it is published. However, notwithstanding the disclaimer as to the majority of situations, the office points out that a claimant may benefit by preregistering a work if it appears likely that someone may infringe on the work before it is released, and the claimant has started the work but has not finished it.
Registration Deadline Affected
According to U.S.C. 17 408(f), 411, and 412, as amended, and also 37 C.F.R. 202.16, in order to preserve the legal benefits of preregistration, a person is then required to register the work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If the copyright owner does not make full registration within the prescribed time period, a court is compelled to dismiss an action for copyright infringement that occurred before or within the first two months after first publication.
Technicalities of Application
A person who wishes to preregister a copyright must use the online application process since no hard copy (paper) form of application exists for preregistration. The filing fee is $140—and is nonrefundable even if the preregistration is denied. Aside from the online application and fee, no copy of the work (or recording in the case of a sound copyright) is submitted; however, as full a description as possible of the work should be included with the application. More than one type of work may be selected for online preregistration at one time if all works are owned by the same claimant, and all works will be published at the same time as a single unit. It should be noted that as is the case with all copyright registrations, preregistration also requires that the work be in some tangible form and not merely exist as “an idea or concept.”
According to U.S. copyright law, 17 U.S.C. 102(b), “ideas and concepts are not subject to copyright protection” and, therefore, cannot be preregistered or registered.
According to copyright law, a work submitted for preregistration must meet three conditions:
1. The work must be unpublished.
2. The work must be in the process of being prepared for commercial distribution in either physical or digital format, e.g., CDs, computer programs, or film copies, to be sold online.
3. The work must be a type of work determined by the [Copyright] Register to have had a history of infringement prior to authorized commercial distribution. Works eligible under this requirement are:
- motion pictures
- sound recordings
- musical compositions
- literary works being prepared for publication in book form
- computer programs (including videogames)
- advertising or marketing photographs