Copyright Compendium

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1808 Adverse Claims

 

1808 Adverse Claims

 

This Section discusses the practices and procedures for asserting an adverse claim to copyright. An adverse claim is a situation where:

 

• The U.S. Copyright Office receives two or more applications (either consecutively or simultaneously) to register the exact same work, where each application was certified and submitted by a different applicant, and each application contains conflicting statements regarding the authorship and/or ownership of the work;

 

or

 

• One party submits an application and asserts that another party’s claim to copyright is unauthorized or invalid.

 

The Office does not conduct interference or adversarial proceedings. Likewise, the Office does not adjudicate factual or legal disputes involving claims to copyright. If there is a dispute between two or more parties, it is the responsibility of each party to pursue their claims in an appropriate court.

 

If a party asserts that another party registered the work without authorization or that a previous registration is invalid for any reason, the Office may suggest that the party register the work in his or her own name by submitting a separate application, deposit copy(ies), and filing fee. Likewise, an adverse claim may be appropriate if the party does not have the authority to correct or amend the information in the basic registration with a supplementary registration. See Section 1802.1.

 

When the Office examines an application, it does not search its records to determine whether the work has been registered before. If an applicant intends to assert an adverse claim, the applicant should provide a brief statement in the Note to Copyright Office field or in a cover letter indicating that the exact same work has been registered by another party. However, the applicant should not provide the registration number for the other registration in the Previous Registration field/space. The registration specialist may add a note to the certificate of registration and the public record indicating the presence of correspondence in the file or may add a note clarifying that the applicant has asserted an adverse claim.

 

If the application appears to be in order, the Office will register the adverse claim. The Office will notify the other party (or that party’s duly authorized agent) that the Office received an adverse claim and that a separate registration has been issued to that party.

 

If the Office discovers that two or more parties are seeking to register the exact same work, the Office will examine each application to determine if the statutory and regulatory requirements have been met. The sequence that each application is received in the Office is irrelevant to this determination, and the Office will not conduct opposition or interference proceedings to determine whether one application should be given priority over the other. See Cancellation of Completed Registrations, 50 Fed. Reg. 40,833, 40,835 (Oct. 7, 1985) (noting the Office does not resolve factual disputes or conduct adversarial proceedings). The Office will inform each party of the other party’s claim. In addition, the Office may ask each party to notify the registration specialist if that party does not wish to proceed with his or her application. If so, that party should submit a request to withdraw his or her application using the procedure described in Chapter 200, Section 208. If a party does not respond to the Office’s inquiry, the Office will proceed with the examination of that party’s application.

 

In most cases, the Office will issue a separate registration to each party and will create a separate public record for each registration. The Office will not cancel the other registration or the registration number that has been assigned to that registration, it will not change the information set forth in the other registration or the public record for that registration, and it will not cross-reference those records with the records for the new registration. Instead, each registration will coexist with each other in the public record.

 

Examples:

 

• BrandImage LLC created a logo for the Shenanigans Amusement Park. Shenanigans registered the logo, naming itself as the sole author and copyright claimant and stating that the logo was created for the amusement park as a work made for hire. BrandImage claims that the registration is invalid, because a logo is not one of the types of works that can be created as a work made for hire and because BrandImage never assigned the copyright in this work to Shenanigans. The information in the basic registration cannot be corrected with a supplementary registration. However, BrandImage may file a new application for a new basic registration naming itself as the sole author and the sole copyright claimant. If BrandImage submits a new application, the Office may notify Shenanigans that the filing has been made, provided that the Office is aware that BrandImage is seeking to register the same work.

 

• Mark O’Meara registered a podcast, naming himself as the copyright claimant. Buzz Allston subsequently sends a letter to the Office stating that the registration is invalid, because Buzz (not Mark) owns the copyright in this work. The Office will refuse to cancel or amend Mark’s registration and will explain that the Office does not resolve factual disputes or conduct adversarial proceedings. Instead, the Office will suggest that Buzz submit an application to register the podcast in his own name. If Buzz’s application is approved, the Office will notify Mark that a separate registration has been made.

 

• The registration specialist receives two applications to register the same airbrush drawing. One application names ABC Graphics as the author and copyright claimant and states that the company’s employees created the drawing as a work made for hire. The other application names an individual as the author and copyright claimant and states that the drawing is not a work made for hire. The specialist will communicate with each applicant. Both parties assert that they are the correct author/claimant and provide a plausible explanation for their respective positions. The registration specialist will register both claims.

 

• Robb Bay submits an application to register a song, naming himself as the author and copyright claimant. In the Note to Copyright Office field, the applicant states that Charles Stabillac registered the song without authorization and that the parties are engaged in a legal dispute concerning the ownership of this work. If Robb’s application satisfies the registration requirements, the specialist will register the claim. The specialist will notify Charles that a new basic registration has been issued to Robb, and the specialist will notify Robb that Charles has been made aware of this development.