A recent opinion from the Central District of California, Express, LLC v. Fetish Group, Inc., 2006 WL 802294 (C.D. Cal. March 24, 2006), addressed an interesting question: understanding that copyright is automatic and that the ultimate question of copyrightability and the scope of protection is up to the court (or jury), for purposes of the Section 410(c) presumption of validity, is the presumptive effect limited by the statements in the application or by the deposit? The case involved lace and embroidery design for a camisole. At issue was whether the registration covered all protectible aspects of the design in keeping with an application that originally said "garment with lace and embroidery design," or instead whether it covered a narrower scope in keeping with the registration as issued which eliminated "garment with." (There were other changes too).
The court held that "it is the registration that sets the scope for the copyright protection," by which is meant presumptive validity. Plaintiff could still prove up its larger claim but had to do so without the benefit of Section 410(c). A related issue is whether the registration covers material not deposited, as in software, where less than the entirety of the work is deposited to protect trade secrets. My view, which is held I believe by some but not all in the Copyright Office, is that the registration only covers material deposited; after all, the Office cannot examine material not presented to it. Both issues demonstrate attention should be paid to the registration process.