Compendium of US Copyright Office Practices (1973)/Chapter 7

by US Copyright Office

Chapter 7

CITIZENSHIP AND DOMICILE OF THE AUTHOR

Outline of Topics

Part 7.1

IN GENERAL

7.1.1

Statutory provisions

I.

U. S. authors

II.

Foreign authors

7.1.2

Copyright Office Policy

7.1.3

Authors and proprietors

I.

Author's citizenship determinative

II.

Which author

III.

Posthumous work

7.1.4

Time as of which status of author is determined

Part 7.2

WORKS BY FOREIGN AND STATELESS AUTHORS DOMICILED ABROAD

7.2.1

In general

I.

Conditions for U. S. Copyright

II.

Citizens of countries with which the U. S. has copyright relations

III.

Citizens of countries with which the U. S. has no copyright relations

7.2.2

Stateless authors

I.

Definition

II.

Eligibility for U. S. Copyright

Part 7.3

WORKS BY FOREIGN AUTHORS DOMICILED IN THE U. S.

7.3.1

In general

I.

Permanent residence

II.

Existence of copyright relations with country of domicile

7.3.2

Territories

7.3.3

Unpublished works

Part 7.4

WORKS OF MIXED AUTHORSHIP

7.4.2

Various nationalities

I.

Specific contributions

II.

Eligible parts proportionately small

Chapter 7. CITIZENSHIP AND DOMICILE OF THE AUTHOR

Part 7.1 IN GENERAL

7.1.1

Statutory Provisions

I.

U. S. Authors. A work by a citizen of the U. S. may be eligible for registration, even if the author permanently resides abroad and the work was first published abroad. (But see Ch. 6.2.1, III. b. 3 concerning books and periodicals by U. S. authors in a foreign language manufactured abroad.)

II.

Foreign Authors. In general, a work by an author who is not a citizen of the U. S. is subject to copyright only under one of the following condi­tions:

a.

If the author was domiciled in the U. S. on the date of first publication of the work (17 U.S.C. §9(a)));

b.

If the country of which the author is a citizen shares reciprocal or multilateral copyright relations with the U. S. (17 U.S.C. §§9(b) and 9(c))--that is:

1.

If the author 1s a citizen of a "pro­claimed country" (one with which the U. S. has copyright relations as determined by a Presidential proclamation) or

2.

If the author is a citizen of a country which is a party to the Universal Copy­right Convention, the Buenos Aires Conven­tion of 1910, or the Mexico City Convention of 1902. (See item 7.2.1.II.b. concerning a work whose author 1s a citizen of a coun­try with which the U. S. has copyright re­lations only through the U.C.C. and that is first published in the U. S.)

c.

If the work was first published in a country (other than the U. S.) which is a party to the U.C.C. (17 U.S.C. §9(c));

d.

If the author is stateless.

7.1.2

Copyright Office Policy. In general, a statement of citizen­ship or domicile will be accepted at face value. Such a statement will not be questioned unless it is contradicted by other information in the file, or unless it appears con­trary to facts that are commonly known. Likewise, the Copy­right Office will not attempt to settle questions of domicile or offer opinions on the subject in a particular case.

Examples:

(1)

An application stating that the author is a U.S. citizen will be questioned where the accompanying letter indicates that he has applied for citizenship but has not yet been naturalized.

(2)

An application stating, for instance that Shostakovich is a Polish citizen will be questioned.

7.1.3

Authors and Proprietors

I.

Author's citizenship determinative. In general, it is the citizenship or domicile) of the "author" of a work, rather than that of the copyright owner, that determines its eligibility for U.S. copyright. The citizenship of the copyright owner, as such, is generally immaterial for this purpose.

Examples:

(1)

A work by a U.S. citizen may be registered even if the copyright is claimed by a citizen of Turkey (With which the U.S. has no copyright relations).

(2)

A composition by Shostakovich, a Russian citizen, first published abroad in a non­ U.C.C. country, will not be registered even if copyright is claimed by a U.S. publisher.

II.

Which author. The "author" whose citzenship (or domicile) is determinative in a particular case is the person who created the material covered by the copyright claim.

a.

In the case of a "new version," the citizenship (or domicile) of the author of the copyrightable new matter, rather than that of the author of an earlier version upon which the present work is based, is the deciding factor.

Examples:

(1)

A composition by a Russian composer, edited and arranged by an American citizen, may be registered on the basis of the new matter.

(2)

A translation of "Gone With The Wind" by a Russian citizen may not be reg­istered (unless first published in a foreign U.C.C. country).

b

In the case of a work made for hire, the citizenship (or domicile) of the employer for hire is the deciding factor.

Examples:

(1)

Registration may be made for a work written by a Russian citizen as employee for hire of an American publisher.

(2)

Registration may be made for a periodical, the publisher of which is an American citizen, regardless of the citizenship of the various contributors, editors, etc.

III.

Posthumous work. In the case of a posthumous work, it is not clear whose citizenship should determine the eligibility for copyright. It is the policy of the Copyright Office in such cases to request the applicant to state not only the citizenship of the deceased author at the time of his death but also the citizenship and (where appropriate) the domicile of the copyright claimant. Registration may be made where either the deceased author or the copyright claimant meets the citizenship and domicile require­ments. (See Supplementary Practice No. 39.)

7.1.4

Time as of which Status of Author is Determined. It is the citizenship (or domicile) of the author at the time of first publication of the work that determines its copyrightability; or, if the work is being registered in unpublished form, the citizenship or domicile of the author on the date the application is submitted is the deciding factor. Changes in the author's status occur­ing after publication are immaterial for this purpose.

Examples:

(1)

When a work was published in 1950 the author was a Venezuelan citizen; the fact that he has now become a U.S. citizen does not make the work registrable.

(2)

A Turkish author was resident in the U.S. while writing a book, but had re­turned permanently to Turkey by the time it was published; registration cannot be made (unless first publica­tion took place in a foreign U.C.C. country ).

 

Part 7.2 WORKS BY FOREIGN AND STATELESS AUTHORS DOMICILED ABROAD

7.2.1

In General

I.

Conditions for U. S. Copyright. A work by an author who is neither a citizen of the U. S. nor domiciled in the U. S. is registrable only if:

a.

The author is a citizen of a country with which the U.8. has copyright relations; or

b.

The work was first published in a U.C.C. country (other than the U. S.); or

c.

The author is stateless.

II.

Citizens of countries with which the U. S. has copy­right relations.

a.

In general, a published or unpublished work by a citizen of a "proclaimed country," or of a country which is a party to the Universal Copyright Conven­tion or the Buenos Aires Copyright Convention of 1910, is eligible for registration, regardless of the domicile of the author or the place of first publication.

b.

A work whose author is a citizen of a country with which the U. S. has copyright relations only through the U.C.C. and that is first published in the U. S. may be registered under the rule of doubt, assuming the formalities applicable to non-U.C.C. works have been complied with. A cautionary letter should be sent in such cases.

III.

Citizens of countries with which the U. S. has no copyright relations.

a.

An unpublished work by a citizen of a country that does not have copyright relations with the U. S. cannot be registered if the author is domiciled abroad (unless he is a refugee who has his habitual residence in a state party to Protocol I of the U.C.C.).

b.

A published work by a citizen of a country which does not have copyright relations with the U. S. cannot be registered if the author is domiciled abroad, (though it can be registered if he is domiciled in the U. S.) unless first publication took place in a country (other than the U. S.) that is a party to the U.C.C.

7.2.2

Stateless Authors

I.

Definition. A stateless author is an author who has renounced or has been deprived of his former citizen­ship, and who has not yet become a citizen of another country.

II.

Eligibility for U. S. Copyright. A published or unpublished work by a stateless author is eligible for U. S. copyright regardless of the former or prospective citizenship of the author, his domicile, or the place of publication of the work.

 

Part 7.3 WORKS BY FOREIGN AUTHORS DOMICILED IN THE U.S.

7.3.1

In General. A published work by a foreign author may be eligible for registration if the author is domiciled in the U. S. at the time of first publication, regardless of the existence of international copyright relations.

I.

Permanent residence. An author is generally regarded as "domiciled" in the U.S. if he intends to make his permanent residence within its territorial limits.

II.

Existence of copyright relations with country of domicile. A work by an author who is a citizen of a country with which the U. S. has no copyright relations will not be eligible for registration by virtue of the author's domicile in any country other than the U.S., even if it is a country with which the U.S. has copyright relations.

7.3.2

Territories. In addition to the United States, including the states of Alaska and Hawaii, domicile in the following territories will be considered domicile in the U. S.:

1.

Puerto Rico

2.

Panama Canal Zone

3.

Virgin Islands

4.

Guam

7.3.3

Unpublished Works. It is questionable, under the wording or the statute, whether an unpublished work by a citizen of a country that does not have copyright relations with the U. S. is eligible for registration, even if the author is domiciled in the U. S. In such cases registration is deferred and the applicant is informed of the problem and of the procedure for securing copyright by publication with notice; if registration for the work in unpublished form 1s still desired, it may be made under the rule or doubt.

 

Part 7.4 WORKS OF FIXED AUTHORSHIP

7.4.1

Various nationalities. A work written jointly by authors of various nationalities, some of whom are eligible to secure U. S. copyright, will be registered on the basis of the authorship of those who are eligible. (But see topic 6.2.1, III. e; mixed authorship: foreign language work)."

I.

Specific contributions. Ordinarily no effort is made to have the application reflect the specific parts of the work contributed by particular authors, or to re­quire the applicant to disclaim copyright in any portion of the work.

II.

Eligible parts proportionately small. However, where the parts of the work that are eligible for registra­tion are so small in proportion to the work as a whole that the entry might otherwise be misleading, the applicant will be requested to specify those portions of the work in which copyright is claimed.

Example:

(1)

A piano concerto by Shostakovich in which the only copyrightable matter consists of dynamics and a brief biographical sketch by an American editor.