1603 Eligibility Requirements
“If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement . . . the owner may apply for preregistration.” Fourth Estate Public Benefit Corp., 139 S. Ct. at 885.
A work of authorship must satisfy the following criteria to qualify for this option:
• The work must be a motion picture; a sound recording; a musical composition; a literary work being prepared for publication in book form; a computer program; a videogame; or a photograph that is intended to advertise or market a particular product or service;
• The work must be copyrightable;
• The author must have begun to create the work;
• The work must be unpublished; and
• The work must be in the process of being prepared for commercial distribution.
37 C.F.R. § 202.16. A work that satisfies all of these requirements is eligible for preregistration, regardless of whether it is intended to be distributed in a physical or electronic format. See 37 C.F.R. § 202.16 (B) (3); see also Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 42,286, 42,287 (July 22, 2005); Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 61,905, 61,905-06 (Oct. 27, 2005). These requirements are discussed in Sections 1603.1 through 1603.5.
If the work described in the application does not meet these requirements, the Office will reject the application. The Office typically receives fewer than 2,000 applications for preregistration each year (compared with more than half a million applications for registration), and the Office rejects many of these applications because the work is not eligible for this procedure.