Section 408(c)(1) provides
The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.
One might think then that getting a registration in the right class is not such a big deal. In Action Tapes, Inc. v. Mattson, issued yesterday, the Eighth Circuit took a technical approach to the registration issue. Plaintiff created eight graphic embroidery designs. It then fixed those designs on memory cards that were inserted into sewing machines capable of reading the cards and then emebedding the designs on fabric and apparel. Defendant is alleged to have purchased lawfully made memory cards containing plaintiff's designs, and then renting the cards to customers. Plaintiff alleged such rental did not fall within the first sale doctrine of Section 109 because of the computer program exception contained therein. In other words, plaintiff alleged it was the owner of a computer program.
Plaintiff only had visual arts registrations, however, and had made no deposit of software. The court of appeals found "insufficient evidentiary support int he rcords" that the certificates obtained related to a computer program. While this is no doubt correct, a less technical approach, based on Section 408(c) would have been to simply say plaintiff presented no evidence it owned a computer program.