Thursday, December 14, 2006

You Say Apple, I say Orange

Section 408(c)(1) of the Copyright Act reads:

(c) Administrative Classification and Optional Deposit. —
(1) 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.

Based on this provision, the Copyright Office has, under the 1976 Act, as it did under the 1909 Act, promulgated forms for applicants to use in submitting their claim for copyright, e.g. Form TX for literary works, Form PA for Performing Arts, Form SR for sound recordings. These classifications are useful in routing the application to examiners, in compiling statistics for types of works registered, as well as to the public in determining the nature of the claim staked out. But as the statute makes clear, the classification by itself does not affect copyrightability or the scope of the registration.

What will affect the scope of the registration is the nature of authorship claim and the deposit. Section 408(c)(1) intended to assist hapless applicants who accurately describe their claim and submit the correct deposit but fill out the wrong form. If, for example, an applicant described the nature of the work as an audiovisual work, but the nature of authorship as music, and submits a deposit that contains the music, the Office will understand that the claim is in the music. This point was made quite clear when the contrary holding of the Third Circuit was vacated without argument, Raquel v. Education Mgt. Corp., 196 F.3d 171 (3d Cir. 1999), vacated, 531 U.S. 952 (2000).

The issue arose again last week in Texas, in Compliance Review Services, Inc. v. Davis-Osuawu, 2006 WL 3541715 (S.D. Tex. Dec. 7, 2006), where a truly hapless plaintiff submitted on a VA (Visual Arts) form, a claim for a "Policy and Procedure Manual." As plaintiff later conceded, the claim should have been submitted on a TX (literary work) form. The court rightly forgave the error, but also rightly dismissed the claim on the merits, after plaintiff apparently failed to submit copies of either its work or defendant’s for the court to review on the issue of substantial similarity, submitting instead an affidavit of its CEO. (Loooooser!).

One exception to this nice liberal attitude is found with the distinction between architectural works and architectural plans. Because the deposit requirements are different for these classes, separate registrations must be made; a single application does not register both.

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