Copyright Compendium

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Chapter 2100
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Chapter 2400

Standard of Deference for the Compendium

 

Standard of Deference for the Compendium

 

The Compendium does not override any existing statute or regulation. The policies and practices set forth in the Compendium do not in themselves have the force and effect of law and are not binding upon the Register of Copyrights or Copyright Office staff. However, the Compendium does explain the legal rationale and determinations of the Copyright Office, where applicable, including circumstances where there is no controlling judicial authority.

 

The Supreme Court recognized that courts may consider the interpretations set forth in administrative manuals, policy statements, and similar materials “to the extent that those interpretations have ‘the power to persuade.'” Christensen v. Harris County, 529 U.S. 576, 587 (2000) (internal citations omitted); Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1510 (2020) (applying “power to persuade” standard to the Compendium). The weight of [the agency’s] judgment . . . in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade ” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

 

Courts have cited the Compendium in numerous copyright cases. See, e.g., Olem Shoe Corp. v. Washington Shoe Corp., 2015 U.S. App. LEXIS 434, at *20-21 (11th Cir. Jan 12, 2015) (finding that the Compendium’s construction of the Copyright Act’s requirements for disclaiming preexisting works during registration “merits deference”); Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673, 684 (9th Cir. 2014) (finding the Compendium “persuasive” concerning the registration requirements for databases); Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., 888 F. Supp. 2d 691, 706-07 (D. Md. 2012) (deferring to the Compendium concerning the registration requirements for collective works); Rogers v. Better Business Bureau of Metropolitan Houston, Inc., 887 F. Supp. 2d 722, 732 (S.D. Tex. 2012) (“The Copyright Office’s ‘policy statements, agency manuals, and enforcement guidelines’ do not carry ‘the force of law,’ but they are entitled to some deference given the ‘specialized experience and broader investigations and information’ of the agency.”); McLaren v. Chico’s FAS, Inc., 2010 U.S. Dist. LEXIS 120185, at **9-10 (S.D.N.Y. Nov. 9, 2010) (concluding that the Office’s interpretation of the unit of publication regulation “is particularly compelling”). A complete list of cases citing the first, second, and third editions of the Compendium is provided in the Table of Authorities.