Compendium of US Copyright Office Practices (1973)/Chapter 11

Published works. Copyright begins on the date of first publication, as shown by the original application and other office records, and lasts for twenty-eight years from that exact date.

I.

Date of registration. The date of copyright registration is immaterial in determining the duration of copyright in published works.

II.

Date in notice. It the year date in the copyright notice is earlier than the actual date of publication, the original copyright term is computed from the last day of the year given in the notice.

a.

The actual date of publication is given in the renewal application, and the Copyright Office adds the annotation "Year date in notice 19__."

b.

Applications received within the twenty-eighth year as computed from the actual date of publication, but more than twenty-eight years from the last day of the year given in the notice, will be rejected.

11.1.2

Unpublished works. Copyright begins on the date of registration in the Copyright Office, and lasts for twenty-eight years from that exact date.

I.

Prior to 1949. Until 1949 the effective date of an unpublished registration was regarded by the Copyright Office as the date the copy was deposited, even though the application and fee may have been received later. Thus, the duration of copyright in an unpublished work registered before 1949 is generally computed from the date of deposit of the copy and this date is given on the renewal application. However, it a renewal application is received more than twenty-eight years from the date of deposit of the copy but less than twenty eight years from the date when the application or fee was received, registration will be made.

II.

Presumption of new matter. When a work originally registered in unpublished form is later published, the date of publication will not affect the duration of copyright in the unpublished work or the time-limits for renewal registration. However, independent renewal registration for the published version will be made on the irrebuttable presumption that it contains new matter.

Part 11.2 TIME LIMITS FOR RENEWAL

11.2.1

Twenty-eighth year. A copyright may be renewed for a second term of twenty-eight years, provided an acceptable application, and fee are received in the Copyright Office or the Library of Congress within the twenty-eighth year of the original copyright term.

I.

Informal application. A letter, telephone call, or telegram may be accepted in lieu of a formal application, provided it adequately identities the work in question and the proper claimant or basis of claim, and provided there is a fee in the Office.

II.

Details. The physical details of renewal registration need not be completed before the original term expires, if an acceptable application and fee are received before the deadline.

III.

Amendment after deadline. If an unacceptable application, necessitating correspondence, is received within the proper time-limits, it may be amended and accepted after the deadline it it originally contained a correct statement of either the claimant or the basis of claim. A special effort is made, however, to obtain a fully-acceptable application before the original term expires.

11.2.2

Computing term. The renewal year comprises the year ending on the date of expiration of the original copyright term. It includes both the twenty-seventh and twenty-eighth anniversaries of the date on which the copyright began.

I.

Application before renewal year. An application received at any time before the beginning of the renewal year must be rejected, and an entirely new application must be submitted at the proper time.

II.

Application after renewal year. If an application or fee is received after the renewal year has expired, the claim must be rejected.

a.

When the office records or original certificate contain an error, omission. or patent ambiguity with respect to the date of publication or registration, which may have misled the renewal applicant, registration is possible after the twenty- year as a doubtful case.

b.

When the office records state a date of publication which has not been questioned or corrected, renewal registration will not be made more than twenty-eight years after that date, even when the renewal applicant asserts that the date was erroneous.

III.

Copyright Office receipt. The date of actual receipt in the Copyright Office or Library of Congress determines the acceptability of a renewal application.

a.

The date of deposit in the mails is immaterial for this purpose.

b.

Receipt of a renewal application or fee in the Library of Congress is regarded as equivalent to receipt in the Copyright Office, but misdirecting or misdelivery to another government agency will not permit registration after the deadline.

IV.

Week-end or holiday. If the original copyright expires on a Saturday, Sunday, or holiday within the District of Columbia, renewal action may be taken on the next succeeding business day.

Part 11.3 ORIGINAL REGISTRATION

11.3.1

First term claim. A claim to the original term of copyright must be registered before renewal registration can be made.

I.

Simultaneous filing. Original registration must precede renewal registration, but the applications, copies and fees may be submitted simultaneously.

II.

Original claimant and copies. Original registration should be made in the name of the original copyright claimant, and copies of the original edition should be deposited. In special cases, however, where copies of the original edition are not available, photostatic copies or reprints may be accepted for deposit. (See topic 5.2.2.I.b.)

11.3.2

Change of policy. The Copyright Office may register claims to renewal even though it might not under its present policies register the original claim.

I.

Examples:

(1)

A work published with no copyright notice for which original registration was made.

(2)

An American reprint published after expiration of the ad interim period.

Exception:

This policy will not apply to the special case where the Office knows that the work is the same or similar to one which a court has decided is not entitled to copyright protection.

Part 11.4 PRESIDENTIAL EXTENSION-OF-TIME PROCLAMATIONS

11.4.1

Section 9. When, under the authority of section 9 of the copyright law, the President issues a proclamation extending the time-limits for renewal registration to the benefit of citizens of a certain nation, the Copyright Office will register renewal claims submitted within the times specified in the proclamation.

11.4.2

Annotation. The records of these registrations will be annotated to refer to the authority for the entries.

11.4.3

Citizenship and domicile of claimant. The citizenship and domicile of a renewal claimant, while immaterial in all other renewal cases, may be considered in determining acceptability under an extension-of-time proclamation.

Part 11.5 CONTRIBUTIONS TO PERIODICALS AND COMPOSITE WORKS

11.5.1

Separate claims. Claims to renewal copyright in contributions to periodicals and other composite works may be registered, whether or not the individual contributions were separately registered apart from the work in which they first appeared.

I.

Identification of composite work. A renewal application covering a contribution which was not registered separately must clearly identify the periodical or other composite work in which it first appeared.

a.

The facts of registration and publication date for the periodical or other work must be given on the application.

b.

All other facts are taken at face value unless a patent error or ambiguity is presented.

II.

Different claimants. A contribution which was published with a separate copyright notice should be separately registered for the original term of copyright before renewal registration is made, if the claimant stated in the notice differs from the claimant given in the notice on the composite work as a whole. The Copyright Office requires original registration as a condition to renewal entry when this fact is known. When the notices on the contribution and the composite work are the same, original registration is optional.

III.

Installments, single entry. When, under a former practice, a number of installments of a serial were registered for copyright under a single entry number, a single renewal application will be accepted.

IV.

Installments, separate entries. When renewal is claimed in a number of installments which were not registered separately, individual renewal applications and fees are required for each installment.

11.5.2

First publication basis. In order to be acceptable, a renewal claim in an individual contribution which was not registered separately must be based on first publication of the work.

Examples:

an application covering a short story which appeared in BEST SHORT STORIES OF 1923, a reprint anthology, would be rejected.

Part 11.6 WORKS FIRST PUBLISHED ABROAD IN ENGLISH

11.6.1

Law prior to 1949. Renewal registrations for work first published abroad in English is governed to some extent by the ad interim provisions of the copyright law as they existed prior to the 1949 amendment.

I.

Time limits. These provided that ad interim registration of first publication abroad, and that the ad interim copyright lasted for four months from the date of registration. It was necessary that a U.S. edition be published during the ad interim period and registered in order to extend the ad interim Copyright to the full term.

II.

Computing term. It is the position of the Copyright Office that, under these provisions, the term of Protection is computed from the date of first publication abroad, and not that of ad interim deposit, of United States publication, or of United States registration.

11.6.2

Foreign edition never registered. If the foreign edition of a work was never registered ad interim but the later American edition was registered, the Copyright Office will accept a renewal application covering the American edition.

I.

Cautionary letter. If the application is received less than twenty-eight years tram the date of foreign publication, a cautionary letter will be sent explaining that the effect of registration is doubtful.

II.

New matter. If the application is received more than twenty-eight years from the date of foreign publication, a cautionary letter will explain that renewal registration covers only the new matter in the American edition, if any.

11.6.3

Both editions registered. It ad interim and full-term registrations were both made within the proper time-limit., renewal registration may be made to cover both editions.

I.

Single renewal application. The present practice of the Copyright Office is to permit the filing of a single renewal application covering both the ad interim and full-term registrations, regardless of whether or not the American edition contained new matter.

a.

The data of both registration. are included on the single application.

b.

A single renewal application covering both ad interim and full-term registration is acceptable only during the period between the twenty-seventh anniversary of first publication of the American edition and the twenty-eighth anniversary of first publication of the foreign edition.

II.

Separate applications. If the applicant prefers, he may file separate applications for the ad interim and full-term registrations.

a.

Each application must be filed within the twenty-eighth year of the term of copyright in the particular edition it covers.

b.

The Copyright Office will annotate each application to refer to the other edition.

III.

Installments. When a work was first published abroad in serial installments and several separate ad interim registrations were made, separate renewal applications are required even though the first American edition was published in a single volume.

IV.

Application too late. If the renewal application is received more than twenty-eight years from the date of first publication abroad it must be rejected as too late. The applicant may file a new application covering the American edition alone, provided that edition contained new matter.

11.6.4

Four months exceeded. When the dates of ad interim registration and United States publication are more than four months apart, a single application covering both entries cannot be accepted. The Copyright Office will make separate registrations following correspondence, if the applicant reasserts his claims, and will add an annotation to each application referring to the other registration.

11.6.5

No American edition. When the Copyright Office records indicate that no American edition of a work has ever been registered the Copyright Office will refuse registration for a renewal claim, based on an ad interim registration.

Part 11.7 RENEWAL CLAIMANTS, AUTHORS AND THEIR HEIRS.

11.7.1

Authors.

I.

Name. The author, if living, may claim renewal, whether his work was published in his true name, an assumed name, or anonymously.

a.

If the author is still living the renewal application must be filed in his own name, even if he is insane or incompetent.

b.

If an applicant is claiming renewal as "the author" and his name does not appear in the original records of the registration, he must submit documents substantiating his claim.

1.

The documents are recorded and the application is annotated to refer to the volume and page of the assignment records in which they appear.

2.

Documents need not be submitted when the nature of the work would make the omission of the claimant's name natural.

Examples:

works of multiple authorship; pictorial reproductions; and obviously anonymous works.

II.

Definitions. The term "author" for renewal purposes, refers to the individual who personally wrote or created "renewable matter," in the work.

a.

The term "author" includes editors, compilers, arrangers, translators, illustrators, etc..

b.

The term "author" does not include employers for hire, publishers, corporations, firms, partnerships, religious orders, fraternal organizations, or any other impersonal entity.

11.7.2

Widows and Children.

I.

Single class. If the author is dead, his widow (widower) and children are entitled to claim renewal. The widow and children are regarded as a single class of renewal claimants, and applications from either or both will be accepted without question.

II.

Definition of "widow." The term "widow" (or "widower") refers to the surviving spouse of the author.

a.

A widow does not loose her renewal right upon remarriage.

b.

A divorced spouse is not an acceptable renewal claimant, but the Copyright Office will not inquire into the validity of a marriage or divorce.

c.

The terms "wife of the author" or "wife of the deceased author" are not acceptable bases of claim.

III.

Definition of "children." The term "children" generally refers to the progeny of the author.

a.

The Copyright Office will register a renewal claim in the name of an illegitimate child, whether acknowledged or not.

b.

Adopted children are acceptable renewal claimants.

c.

Step-children are not entitled to claim renewal.

d.

Grandchildren and other descendants beyond the first degree cannot claim renewal as the children of the author."

e.

The Copyright Office will request a new application if a child is claiming renewal as the author's "next-of-kin."

11.7.3

Executors.

I.

Will. It the author died, leaving a will, and if no widow or children exist at the time the renewal application is filed, the authors executors may claim renewal in their own names.

II.

Author deceased prior to renewal year. The author need not live into the renewal year in order for his executors to claim.

III.

Qualification. In order to be regarded as an "executor," a claimant must have been named in the author's will, and presumably must have been qualified in probate proceedings. However, the Copyright Office will not refuse registration in the name of an executor even if the author's will has not been probated.

IV.

Personal right. The right to claim renewal as "executor" is a personal one, and the individual executor must be named in the renewal application.

a.

The author's. legatees have no right to claim renewal.

b.

A renewal claim cannot be registered in the name of "The Estate of John Doe," even if executors have not yet been qualified under the author's will.

V.

Intestate. In no case can the administrator of an intestate author's estate claim renewal.

11.7.4

Next of kin.

I.

Absence of will. If the author is dead and no widow or children survive him, and if there is "the absence of a Will," the author's next of kin are entitled to claim renewal.

II.

Definitions. The term "next of kin" refers only to blood relatives of the author.

a.

It is not clear whether the term· "next of kin" refer only to the living relatives of the nearest degree at consanguinity, or whether it also includes the descendants of dead relatives claiming on the theory of representation.

Example:

An author had two brothers, one of whom died leaving two sons, may the nephews claim renewal equally with the surviving brother?

b.

The Copyright Office will register the claim of any blood relative as "next of kin," regardless of the degree of consanguinity.

c.

The statement of the basis of claim on the renewal application must not consist solely of a statement of relationship, examples: sister, mother, niece, etc. The claim itself should be stated as "next of kin of the deceased author, there being no will," although kinship may be specified parenthetically.

d.

Statements such as "heirs" or "representative of heirs" are not acceptable either as claimants or as bases of claim.

III.

Will, no executor. If the author left a will but no executors exist at the time for renewal, the proper renewal claimant is unclear.

a.

Except in the situation noted in topic 11.7.4.III.c.2., below, the Copyright Office will accept a claim in the names of the next of kin, on the basis of judicial authority.

b.

If it is unclear whether executors still exist, registration may be made in the names of both the executors and the next of kin, on separate applications and for separate fees.

Example:

The executor himself is unsure whether or not he was actually discharged.

c.

It the author leaves a will which names no executor, or if the person names cannot or will not act as executor, the court may appoint an "administrator cum testamento annexo" (administrator with the will annexed; administrator c.t.a.) who performs the identical functions of an executor. When the estate has been settled and the executors discharged, or when the executor is removed before the estate is completely administered, the court may appoint an "administrator de bonis non cum testamento annexo" (administrator de bonis non with the will annexed; administrator d.b.n.c.t.a.) to deal with the remaining or after-acquired property under the will.

1.

The Copyright Office will register renewal claims in the names of administrators c.t.a. or administrators d.b.n.c.t.a. Except as noted in paragraph 2, below, the Copyright Office will also register renewal claims for the work in the names of both the next of kin and the administrators c.t.a. or administrators d.b.n.c.t.a., on the basis of separate applications and fees.

2.

Ordinarily, registration will be made in the names of the author's next of kin, even when administrators c.t.a. or administrators d.b.n.c.t.a. exist.

Exception:

If the author left a will without naming an executor, and an administrator c.t.a. or an administrator d.b.n.c.t.a. is in existence at the time of renewal registration, an application in the name of the next of kin will be refused on the basis of Gibran v. National Committee of Gibran.

Part 11.8 RENEWAL CLAIMANTS: PROPRIETORS

11.8.1

Proprietors in general.

I.

Definition. The term "proprietor" refers to the owner of copyright on the date the renewal application is filed.

II.

Derivation of title. In order to claim renewal as "proprietor," the claimant must derive his title directly or indirectly from the original copyright owner.

11.8.2

Posthumous works.

I.

Proper claimant. If a work "posthumous" within the meaning of the copyright law, the proprietor is the only proper claimant.

a.

Generally, the author's widow, children, executors, or next of kin have no right to claim renewal in posthumous work.

b.

It a work consists of the writings of more than one person, and if one of the authors died before first publication, the work is regarded as partially posthumous, and renewal or copyright in the posthumous material must be claimed by the proprietor.

Example:

collection or letters by famous author, edited by his widow; widow may claim renewal in her editing as "author, but publisher claims renewal in letters as "proprietor of copyright in a posthumous work."

c.

There is doubt under the wording of the renewal section as to whether the proprietor of a posthumous work may claim renewal when the work was originally published as a contribution to a periodical and not registered separately. The Copyright Office will accept applications from the proprietor, from the author's executors, widow, children, or next or kin, or from both, provided separate applications and fees are submitted.

II.

Definitions. The term "posthumous work" includes a work first published after the author's death, and registration in such a work is made only in the name of the proprietor. It is unclear whether the following works are "posthumous," and the Copyright Office will accept claims by the proprietors, by the author's beneficiaries, or both:

a.

Works registered as unpublished after the author's death, but never published.

b.

Works registered as unpublished during the author's life, but published after his death.

11.8.3

Composite works.

I.

Proprietor-claimant. The proprietor of a periodic, cyclopedic, or other composite work may claim renewal in the work as a whole.

II.

Definitions. Generally, a composite work is an original publication relating to a variety of subjects, to which number of different authors have contributed distinguishable and separable selections.

a.

To be regarded as "composite" a work must be covered by a single copyright.

b.

A work by a single author, consisting of a collection of his writings, is not a composite work.

c.

A work which is the product of joint authorship and common design, or which consists of elements which have been indistinguishably merged into a single entity, cannot be regarded as composite.

Examples:

musical compositions, dramas and dramatico-musical works.

III.

Individual contributions. While the proprietor of a composite work may claim renewal in the work as a whole, the author of an individual contribution, or his beneficiaries, may also claim renewal in his contribution.

a.

It is unclear whether the proprietor's claim in the entire work covers everything in the work that is not separately renewed.

b.

If a renewal application covering an individual contribution is received too late for registration, the Copyright Office furnishes the applicant with the facts of renewal registration for the composite work.

11.8.4

Corporate claimant. In the Case of a "work copyrighted by a corporate body otherwise than as assignee or licensee of the author" the statute gives the proprietor the right to claim renewal.

I.

Questionable claim. This basis of claim is always questioned unless it has been established by previous correspondence.

II.

When not acceptable. This basis of claim is not acceptable when:

a.

The original copyright claimant was not a corporation.

b.

The individual author of an unpublished work transferred his common law literary property, or his right to secure copyright, to a corporation.

1.

The corporation is regarded as the author's assignee.

2.

The fact that the corporation also purchased the author's manuscript does not change its

status as assignee.

c.

The work is posthumous or composite, was made for hire, or is a print or label for which registration was made in the Patent Office.

III.

Special circumstances. In cases other than those listed in item 11.8.4, II, above, registration on this basis will be strongly discouraged and will be made only when the applicant indicates that there were special circumstances under which the claim might conceivably be said to apply.

Examples:

(1)

Works to which the stockholders of a corporation have contributed indistinguishable parts.

(2)

Works written or created by members of a religious order or similar organization, when the individual authors never had a personal property right in the works.

(3)

Works written by an official or major stockholder in a corporation, when the works were written directly for the corporation and the arrangement did not amount to employment for hire.

(4)

Motion pictures, when the applicant asserts that the work was produced under special circumstances and was not copyrighted by an employer for whom the work was made for hire.

11.8.5

Employer for hire. Renewal copyright in works copyrighted by employer for whom they were made for hire may be claimed by the proprietor.

I.

Employer-claimant. Generally, in order for this basis of claim to be acceptable, the original copyright claimant must have secured the copyright by virtue of his employment of the author, rather than through any transfer of rights after the work was completed.

II.

Definitions. The Copyright Office will make no effort to determine whether or not a particular arrangement constituted employment for hire.

a.

A renewal claim as "author" will be questioned when the original records of the registration state that the work was made for hire.

b.

A renewal claim as "proprietor of copyright in a work made for hire" will be questioned when the original copyright claimant was also the only author listed on our records.

1.

The claim will be registered if the individual was listed as "author" by virtue of being an employer for hire.

2.

The claim will be rejected if the person listed as "author" on the original records wrote the work himself, unless an explanation is offered indicating the author was employed for hire, and inadvertently or by agreement with the employer claimed copyright in his own name.

III.

Work made for hire. The law specifies that, in order for this claim to be applicable, the work must have been copyrighted by the employer for which the work was made for hire.

a.

No provision is made for the case in which the work was made for hire, but the employer transferred his common law literal property to a third person prior to publication.

b.

When this situation is presented the Copyright Office will register a claim as "proprietor of copyright in a work made for hire," but will point the difficulty out to the applicant.

IV.

More than one author. When more than one author contributed to a work, the renewal claimant need not specify that all of the authors were employed for hire.

a.

If only some of the authors were employed, this fact should appear on the renewal application.

b.

The Copyright Office will accept claims by authors or their beneficiaries and proprietors of copyright in a work made for hire on the same application, provided no patent inconsistency is presented.

V.

Doubt re: proprietor-claimant. Although there is doubt, under the wording of the renewal section, as to whether the proprietor of copyright in a work made for hire may claim renewal when the work was originally published as a contribution to a periodical and not registered separately, the Copyright Office will accept the claim without question.

11.8.6

Prints and Labels registered in the Patent Office.

I.

Proprietor entitled. The proprietor of copyright in a print or label for which registration was made in the Patent Office prior to July 1, 1940, is entitled to claim renewal.

II.

Author not entitled. The author of such a work bas no renewal rights.

Part 11.9 JOINT RENEWAL CLAIMANTS

11.9.1

Several claimants, same application. When a number of different persons are entitled to claim renewal in the same work, they may submit their claims on the same application, or they may submit separate applications and tees. It is not necessary that all possible claimants join in applying tor registration in order to secure a renewal.

11.9.2

Later application, same work. When renewal registration for a work has already been made and a later application covering the same work is received, the Copyright Office will first determine what claims have been registered.

I.

All claims already registered. If all of the claims stated on the later application have already been registered, the application will be rejected.

II.

Some claims already registered. It any of the claims stated on the later application have not been registered, and are not inconsistent with the earlier claims, the application will be passed without question, even though it may also contain claims which have already been registered.

III.

Adverse claims stated on the later application are or may be in conflict with a claim or claim which have already been registered, a matter of explanation is requested from the second applicant. The later claim will be registered without further question if the applicant reasserts it.

Examples of typical adverse claim situations:

a.

Conflicts among second proviso claimants (the author and his beneficiaries).

1.

When an earlier claim was registered in the name of an author's next of kin, and a new application is submitted by an executor, the Office requests information concerning existence of a will.

2.

When a claim was registered in the name of an author, and his widow now claims, the Office asks the date of the author's death.

(a)

If the date is earlier than that on which the first application was filed, registration is made without further ado.

(b)

If the author was living when registration was made in his name, the widow's claim may also be registered as a doubtful case, despite the principle that renewal rights vest on the date of a valid registration.

b.

Conflicts among first and second proviso claimants (proprietors as against authors and their beneficiaries).

1.

When a claim was registered in the name of an author, and a new application is submitted as "proprietor of copyright in a work made tor hire," the Office requests information concerning the circumstances under which the work was written.

2.

When a claim was registered in the name of one of several authors, and a new application is submitted as "proprietor of copyright in a work made for hire," without restricting the claim to the work of a particular author or authors, the office asks whether the claim covers the material written by the person in whose name registration has already been made.

(a)

If so, registration will be made if the applicant reasserts his claim.

(b)

If not, a new application should be submitted confing the claim to the material written by employees for hire.

Part 11.10 UNACCEPTABLE RENEWAL CLAIMS

11.10.1

Personal right. The right to claim a renewal copyright is a personal right.

I.

Living person. A renewal can be claimed only by a living person.

Example:

When a claimant dies while his renewal application is in the mails, a new application in the name of a different claimant must be submitted.

II.

Claimants must be named. The renewal right accrues to an individual person or firm, and not to a status.

Examples:

claims by "The Executors of James Fitzgerald" or "the executors of the author," or by "the next of kin of the author" are not acceptable.

III.

Authority to apply; acceptable address. The renewal application should be submitted by the claimant himself, or by someone authorized by him to do so.

a.

The Copyright Office will not question the authority for filing the application.

b.

The claimant is actual address, or the address at which he could be reached, should appear on the application.

Examples:

(1)

"Philadelphia, Pennsylvania," and "London, England" are not acceptable addresses.

(2)

The address may be stated as "in care of" the person or firm filing the application, but the Copyright Office suggests this alternative with caution.

11.10.2

Statutory claimants. The Copyright Office can register renewal claims only in the names of claimants listed as acceptable in the statute.

I.

Failure to qualify. It none of the claimants listed in the statute exists or can be identified, registration must be refused.

II.

Successors or representatives. The successors or representatives of a person who could have claimed it still living have no right, as such, to claim renewal.

Example:

the executors of the author's widow are unacceptable claimants.

III.

Assignment of renewal interest. Registration must be made in the name of a statutory claimant, even though he has assigned all of his interest in the renewal term.

Examples:

registration cannot be made in the names of an "assignee," "proprietor," "attorney-in-fact," or "owner per agreement."

11.10.3

Material covered. A renewal claim in a work can cover only the material which was first published in that particular version of the work.

I.

Later version. The original author of a published work cannot claim renewal in a later version of that work unless he himself contributed to the new matter on which copyright in the later version was claimed.

Example:

Where it appears from the record that an author's original composition was published before an arrangement of it by another person, a renewal claim in the arrangement by the author, based on his original composition, is unacceptable.

II.

Revised published version. But where an author's original unpublished work was first published with an arrangement or other new matter by another person, the author's claim to renewal in the published work may be accepted.