1008.2 Unclaimable Material Must Be Excluded from the Claim
As with any type of work, a registration for website content does not extend to any unclaimable material that may be contained within that content. For purposes of registration, unclaimable material includes material that is not owned by the claimant, material that is in the public domain, or material that was previously published or previously registered.
If the deposit contains an appreciable amount of previously published, previously registered, public domain, or third party material, the applicant must expressly exclude that material from the claim using the procedure described in Chapter 600, Section 621.8. Asserting a claim in previously published material is one of the most common mistakes that applicants make when completing an application to register website content.
The U.S. Copyright Office has a longstanding practice of precluding previously published material from a claim in a collective work or derivative work, even if the author of the collective work or derivative work is the author of the previously published material and owns all of the rights in that material. The Office requires applicants to disclaim previously published material for several reasons. Historically, publication affected the duration of the copyright in a work, and it continues to be implicated in the duration of works made for hire, anonymous works, and pseudonymous works. Obtaining information about the date and nation of first publication may be necessary to determine if a particular work is eligible for copyright protection in the United States or to determine if the applicant satisfied the applicable deposit requirements. To register a published work an applicant may be required to submit a complete copy of that work, unless the Office’s regulations explicitly allow for the submission of identifying material. Finally, this longstanding practice clarifies the date of publication for a particular work, which may assist the courts in assessing the copyright owner’s eligibility for statutory damages and attorney’s fees in an infringement action. For information concerning these issues, see Chapter 500, Section 503.5.