1708.5 Amending the Application During an Administrative Appeal
When evaluating a first or second request for reconsideration, the U.S. Copyright Office will focus on the type of authorship claimed in the application, such as “2-D artwork” or “text.” As a general rule, the Office will not consider any type of authorship that was not expressly claimed in the application when the claim was refused. That said, the Office may allow an applicant to amend the application during a first or second appeal if the failure to include this information was the result of an honest omission or mistake.
An application is submitted for a children’s book titled The Empty Pi√É¬±ata. The work contains artwork and a de minimis amount of text, but the applicant only asserted a claim in “text.” The registration specialist refuses registration. On appeal, the applicant admits that the words are uncopyrightable, and states that the applicant inadvertently failed to include a claim in “2-d artwork.” The Office will uphold the refusal to register the claim in “text,” and will consider whether the artwork contains a sufficient amount of creative expression to support a registration.