1603.1 Works That Are Eligible for Preregistration
Congress directed the Register of Copyrights to issue preregistrations for any work of authorship that falls within a class of works that has had a history of infringement prior to the authorized commercial distribution by the copyright owner. 17 U.S.C. § 408 (F) (1)- (2). The Office determined that there has been a substantial history of prerelease infringement involving the following classes of works:
• Motion pictures.
• Sound recordings.
• Musical compositions.
• Literary works being prepared for publication in book form.
• Computer programs (including videogames).
• Advertising or marketing photographs.
37 C.F.R. § 202.16 (B) (1). A work of authorship must fall within one or more of these classes to be eligible for preregistration. The Office will refuse an application for preregistration if the work does not appear to fall within any of these classes.
• The U.S. Copyright Office will accept an application to preregister a motion picture. However, the Office will refuse to preregister a treatment, screenplay, storyboard, or shooting script for a motion picture because these types of works do not fit within the statutory definition of a “motion picture.” See 17 U.S.C. § 101 (defining motion pictures as “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any”).
• As a general rule, a preregistration for a motion picture covers any sounds that may be embodied in that work (i.e., the soundtrack). However, the U.S. Copyright Office may question an application that asserts a claim in both a motion picture and a sound recording, because the soundtrack for a motion picture does not fit within the statutory definition of a “sound recording.” See 17 U.S.C. § 101 (defining sound recordings as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work … “).
• A work of fiction or nonfiction that is intended to be published in book form (i.e., hardback books, paperback books, ebooks, and the like) may be eligible for preregistration, even if the work contains material that would be ineligible for preregistration on its own, such as drawings, illustrations, or other two-dimensional artwork.
• A work of fiction or nonfiction that is intended to be published in book form may be eligible for preregistration, even if the work will be published exclusively online. However, the U.S. Copyright Office will not accept an application to preregister a website, because websites are not published in “book form.”
• A personal journal or a daily diary would be considered a literary work, but these types of works are not eligible for preregistration, because in most cases, they are not intended to be published, nor are they intended for commercial distribution. See Sections 1603.4 and 1603.5.
• The U.S. Copyright Office will accept an application to preregister a computer program that is intended for commercial distribution. However, the Office will refuse to preregister a claim in the HTML code for a website, because HTML code is a markup language rather than a computer programming language, and thus coding in HTML generally does not result in a computer program.
• A photograph that is intended to advertise or market a particular product or service may be eligible for preregistration, but a family portrait or a photograph taken on a personal vacation would not.
• A photograph of a famous celebrity caught in an embarrassing situation would not be eligible for preregistration, because this type of work does not advertise or market a particular product or service.
For a definition and general discussion of the types of works that are eligible for preregistration, see Chapters 700, 800, and 900.
See generally Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 42,286, 42,288 (July 22, 2005); Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 61,905, 61,906 (Oct. 27, 2005).