621.4 Previously Published Material
If the work described in the application contains an appreciable amount of copyrightable material that has been previously published, the previously published material should be excluded from the claim using the procedure described in Section 621.8 (B). This rule applies regardless of whether the previously published material was published in the United States or in a foreign country (or both).
The U.S. Copyright Office requires applicants to disclaim previously published material for several reasons. In particular, this information may be needed to determine:
• The length of the copyright term.
• Whether the relevant deposit requirements have been satisfied.
• Whether the certificate of registration is entitled to certain legal presumptions.
• Whether the copyright owner is entitled to certain legal remedies in an infringement dispute.
• Whether an infringer may rely on certain defenses in an infringement dispute.
Requiring applicants to disclaim previously published material also encourages early registration and promotes administrative efficiency. For information concerning each of these issues, see Chapter 500, Section 503.5.
The applicant should determine whether the work contains previously published material on the date that the work is submitted to the Office. In other words, if the applicant intends to register a work that contains an appreciable amount of material that was published at any time before the application is submitted, the applicant should exclude that previously published material from the claim.
The date of creation for the work that the applicant intends to register is irrelevant to this determination. In other words, previously published material should be disclaimed, regardless of whether that material was created before or simultaneously with the work that the applicant intends to register. Likewise, previously published material should be disclaimed regardless of whether that material was published before or after the date of creation for the work that the applicant intends to register.
Examples:
• The Piecemeal Press submits an application for a textbook and states that the work was published on March 24, 2005. The deposit copies indicate that this is the second edition of this work and that the first edition was published in 2004. In the Material Excluded field the applicant states “previously published edition” to exclude the previously published material from the claim, and in the New Material Included field states “new text” to limit the claim to the new material that appears in the second edition. The registration specialist will register the claim.
• Dr. Sabrina Oxley submits an application on Form TX for a self- help book on May 1, 2012, and states that the book was published on April 1, 2012. A statement on the cover indicates that the third chapter was published in a fitness magazine on March 1, 2012. In space 6 (A) the applicant states “chapter three was previously published” to exclude that chapter from the claim, and in space 6 (B) the applicant states “new text” to limit the claim to the new material which was published on April 1, 2012. The registration specialist will register the claim.
• Frank Hempstead is the author of the novel A Lovable Beast, which was published in 1945. Hempstead’s daughter published her father’s original manuscript for this work in 2005. The manuscript contains an appreciable amount of text that did not appear in the 1945 edition. The applicant states “A Lovable Beast, published in 1945” in the Material Excluded field to exclude the material that appeared in the 1945 edition. The applicant states “additional text” in the New Material Included field to limit the claim to the new material that was published in 2005. The registration specialist will register the claim.
For a definition and detailed discussion of publication, see Chapter 1900.