Compendium of US Copyright Office Practices, II (1984)/1300

Background. The copyright law of 1909, as amended, provided for copyright protection for an initial term of 28 years, with the possibility of a renewal term of statutory protection if a claim to renewal copyright was registered in the Copyright Office during the last year of the first term. However, a new copyright statute came into full effect on January 1, 1978: among other things, the new law makes important changes concerning the length of copyright protection: for works that are copyrighted for the first time on or after January 1, 1978, it establishes a single copyright term. Nevertheless, under the new law, works originally copyrighted before January 1, 1978, must still be renewed in order to obtain the fullest period of copyright protection allowed by the law for such works. This chapter is applicable only to those works.

1301.01

Works copyrighted before January 1, 1978. Section 304(a) of the copyright law provides that "any copyright, the first term of which is subsisting on January 1, 1978," endures for 28 years from the date it was originally secured, and that a renewal term of copyright lasting 47 years, can be secured by certain designated claimants if an application for renewal is made to the Copyright Office "within one year prior to the expiration of the original term of copy right." The law specifies that all such terms of copyright run to the end of the calendar year in which they would otherwise expire. See 17 U.S.C. 305. This not only affects the duration of copyright: it also affects the time limits for renewal registration. See section 1302 below.

NOTE: For works that were in their renewal term of copyright on December 31, 1977, the law automatically extended the copyright to last for a total of 75 years (a first term of 28 years plus a renewal term of 47 years) measured from the end of the year in which the copyright was originally secured; no additional renewal is necessary for such works.

1302

Time limits for renewal. A copyright may be renewed for a renewal term of 47 years, provided that an acceptable application and fee are received in the Copyright Office or elsewhere in the Library of Congress during the year immediately preceding the expiration date of the original term of copyright. See 17 U.S.C. 304(a).

*

Unless the required application and fee are received during the prescribed period before the first term of copyright expires, the copyright in the work terminates at the expiration of 28 years from the end of the calendar year in which copyright was originally secured.

*

The Copyright Office has no discretion to extend the renewal time limits.

See

37 C.F.R. 202.17(c)(1). 1302.01

1302.01

Informal applications. Whenever a renewal applicant has cause to believe that a formal application for renewal (Form RE) (and in the case of works in which U.S. copyright subsists by virtue of section 9(c) of title 17, U.S.C., in effect on December 31, 1977, an accompanying affidavit and submission relating to the subsistence of first-term copyright), if sent to the Copyright Office by mail, might not be received in the Copyright Office before expiration of the statutory time limits the applicant may apply for renewal registration by telegraphic or similar unsigned written communication. An application made by this method only will be accepted if:

(1)

the message is received in the Copyright Office within the specified time limits;

(2)

the applicant adequately identifies the work involved, the date of first publication or original registration, the name and address of the renewal claimant, and the statutory basis of the renewal claim;

(3)

the fee for renewal registration, if not already on deposit, is received in the Copyright Office before the time for renewal registration has expired; and

(4)

a formal application for renewal (Form RE) (and in the case of works in which U.S. copyright subsists by virtue of section 9(c) of title 17, U.S.C., in effect on December 31, 1977, as provided in 37 C.F.R. 202.17(d)(2), an accompanying affidavit and submission relating to subsistence of the first-term copyright) are also received in the Copyright Office before February 1 of the following year.

See 37 C.F.R. 202.17(c)(3).

1303

Computing term for published works. Copyright for works published before January I, 1978, generally began on the date of first publication. However, under the current Act the original term does not expire until the end of the last day of the 28th calendar year measured from the year of first publication. See 17 U.S.C. 305.

1303.01

Antedated notice. In cases where the year date in the copyright notice appearing on the copies as first published was earlier than the actual date of publication, the original term of copyright is computed from the last day of the year given in the notice, and not the date of publication. The actual date of publication should be given in the renewal application, and the Copyright Office will add the annotation: "YEAR DATE IN COPYRIGHT NOTICE: 19__" Claims to renewal copyright received more than 28 years from the first day in the year given in the copyright notice will be refused registration. See also section 1308 below.

1303.02

Postdated notice. If the year date in the copyright notice appearing on the copies as published was one year later than the actual date of publication, the original term is computed for renewal purposes from the year date of publication. No annotation respecting a postdated notice will be made to the renewal application.

1304

Computing term for unpublished works. For unpublished works registered in the Copyright Office before January 1, 1978, statutory copyright began on the date of such registration and lasts for an original term of 28 years. Under the new law the original term does not expire for such works until the end of the last day of the 28th calendar year after registration. The date of registration of unpublished works currently renewable under the new law is the date when the last element (application, copy, fee) was received in acceptable form in the Copyright Office.

1305

Amendment after deadline. If an application that contains a title by which the work may be identified and a correct statement of either the renewal claimant or basis of the renewal claim is received within the proper time limits, but correspondence is required, the claim may be entered after expiration of the original term. However, the Copyright Office will make a special effort to obtain a fully acceptable application before the original term expires.

Example:

A renewal application for a work by John Doe received during the 28th year of the first term identifies the renewal claimant as executrix, and the Copyright Office has reason to believe that the claimant is the surviving spouse, e.g.,the renewal application gives Mrs. John Doe, or the letter of transmittal indicates that she is the widow of the author. The Copyright Office will write for a new application setting forth the proper basis of claim, even though the statutory renewal period has expired in the interim.

1306

Date of receipt. The date of actual receipt in the Copyright Office determines the acceptability of a renewal application. See 37 C.F.R. 202.17(c).

*

Receipt of a renewal application or fee elsewhere in the Library of Congress is regarded as equivalent to receipt in the Copyright Office.

*

Mail misdirected or misdelivered to another Government agency, and delivered to the Copyright Office after the deadline will not permit registration.

*

The date of deposit in the mails is not determinative for this purpose.

1306.01

Delay in delivery caused by disruption of postal or other services. In any case in which the Register of Copyrights determines, on the basis of such evidence as the Register may by regulation require, that a deposit, application, fee, or any other material to be delivered to the Copyright Office by a particular date, would have been received in the Copyright Office in due time except for a general disruption or suspension of postal or other transportation or communications services, the actual receipt of such material in the Copyright Office within one month after the date on which the Register determines that the disruption or suspension of such services has terminated, shall be considered timely. 17 U.S.C. 709. No regulation has yet been issued by the Copyright Office under this provision.

1307

Application received before the renewal year. A renewal application received at any time before the beginning of the renewal year will not be accepted. An entirely new application must be submitted during the proper year.

1308

Application received after the renewal year. If an application or fee is received after the renewal year has expired, the claim will be refused.

*

When the applicant filed too late in reasonable reliance on a record created, or original certificate issued, by the Copyright Office, or an official Copyright Office search report, which contained an error, omission, or patent ambiguity with respect to the term, the Copyright Office will register the renewal claim as a doubtful case.

*

When the Copyright Office records state a date of publication which has not been questioned or corrected, renewal registration will not be made after the 28th year from that date, even when the renewal applicant asserts that the date was erroneous. Concerning the procedure for correcting a date of publication, see Chapter 1500: CORRECTIONS AND AMPLIFICATIONS OF COPYRIGHT RECORDS: SUPPLEMENTARY REGISTRATIONS.

Examples:

1)

Where the renewal applicant has relied on a certificate of original registration which lacked an annotation showing that the year date in the copyright notice was antedated, a renewal application will be accepted during the 28th year measured from the date of publication.

2)

Where the applicant has relied on incorrect information appearing in the Catalog of Copyright Entries as a result of a Copyright Office error, renewal registration will be made.

1309

Original registration. Except as provided in section 1309.01 below, copyright in a work will not be registered for a renewal term unless an original registration for the work has been made in the Copyright Office. However, the original and renewal claims may be submitted simultaneously, although the renewal claim will be processed only after a registration number has been assigned to the application for the original term. Generally, in examining such applications for first-term registration, the Copyright Office will apply the practices existing at the time the work was originally published in determining registrability. The current application forms and registration fees will be required.

NOTE: The Copyright Office may register claims to renewal even though it might not under its present policies register the original claim.

1309.01

Exception to requirement for original registration. An original registration in the Copyright Office is not a condition precedent for renewal registration in the case of a work in which U.S. copyright subsists by virtue of section 9(c) of title 17, U.S.C., in effect on December 31, 1977, (which implemented the Universal Copyright Convention), provided, how ever, that the application for renewal registration is accompanied by:

1)

An affidavit identified as "Renewal Affidavit for a U.C.C. Work" and containing the following information:

(A)

The date of first publication of the work;

(B)

The place of first publication of the work:

(C)

The citizenship of the author on the date of first publication of the work:

(D)

The domicile of the author on the date of first publication of the work:

(E)

An averment that, at the time of first publication, all the copies of the work published under the authority of the author or other copyright proprietor bore the symbol © accompanied by the name of the copyright proprietor and the year of first publication, and that U.S. copyright subsists in the work;

(F)

The handwritten signature of the renewal claimant or the duly authorized agent of the renewal claimant. The signature shall (1) be accompanied by the printed or type written name of the person signing the affidavit and by the date of the signature: and (2) shall be immediately preceded by the following printed or typewritten statement in accordance with section 1746 of title 28, U.S.C.: I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

2)

A submission relating to the notice of copyright and copyrightable content which shall be, in descending order of preference, comprised of:

(A)

One complete copy of the work as first published: or

(B)

(1) A photocopy of the title page of the work as first published, and

(2)

A photocopy of the page of the work as first published bearing the copyright notice, and

(3)

A specification as to the location, relative to each other, of the title and notice pages of the work as first published, if the pages are different, and

(4)

A brief description of the copyrightable content of the work, and

(5)

An explanation of the inability to submit one complete copy of the work as first published; or

(C)

A statement describing the position and contents of the copyright notice as it appeared on the work as first published, and a brief description of the copyrightable content. The statement shall be made and signed in accordance with paragraph (1)(F) of this section and shall also include an explanation of the inability to submit either one complete copy of the work as first published or photocopies of the title and notice of the work as first published. See 37 C.F.R. 202.17(d)(2).

1310

Contributions to periodicals and composite works. The following practices relate to renewal of claims to copyright in contributions to periodicals and composite works.

1310.01

First publication basis. In order to be accept able, a renewal claim in an individual contribution which was not registered separately must be based on first publication of the contribution.

Example:

A renewal application covering a short story which appeared in BEST SHORT STORIES, an anthology of previously published materials, will not be registered since the short story was not first published in the anthology.

1310.02

Separate claims. Individual renewal copyright in contributions to periodicals and other composite works may be registered, whether or not they were separately registered for their original term of copyright. Where the individual contribution was not separately registered, a claim to copyright in the periodical or other composite work must have been registered to serve as a basis for renewal registration of the individual contribution.

1310.03

Identification of composite work. A renewal application covering a contribution which was not registered separately must clearly identify the periodical or other composite work in which the contribution appeared. Generally, a composite work is an original publication relating to a variety of subjects to which a number of different authors have contributed distinguishable and separable selections: in this connection, see also section 1317.04(a) below.

1310.03(a)

Facts of original registration required. The renewal application must contain the facts of original registration, e.g., title of periodical, volume and 1ssue number, issue date and original registration date, in addition to the publication date for the periodical or other work. Where the work cannot be fully identified from the renewal application and Copyright Office records, correspondence may be necessary. All other statements on the renewal application are taken at face value unless a patent error or ambiguity is presented.

1310.04

Different claimants. A contribution which was published with a separate copyright notice should be separately registered for the original term of copyright before renewal registration is made, if the claimant stated in the notice differs from the claimant given in the notice on the composite work as a whole. The Copyright Office requires original registration as a condition to renewal registration when this fact is known. When the names in the copyright notices appearing on the contribution and the composite work are the same, original registration for the individual contribution is optional.

1310.05

Group registrations. A single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon submisson of a single fee and application, when certain conditions are met. The "author" here means an individual person and not an employer in the case of a work made for hire. Also the class in which the original registrations were made is immaterial and is not limited to Class B (Form BB). The above mentioned conditions, set forth below, must all be met:

1)

The renewal claimant or claimants, and the basis of claim or claims under 17 U.S.C. 304(a), is the same for each of the works and

2)

The works were all copyrighted upon their first publication, either through a separate copyright notice and registration, or by virtue of a general copyright notice in the periodical issue as a whole and a claim to copyright has been registered in the periodical issue and

3)

The renewal application and fee are received not more than 28 or less than 27 years after the 31st day of December of the calendar year in which all of the works were first published; and

4)

The renewal application identifies each work separately, including the periodical containing it and its date of first publication.

See

17 U.S.C. 408(c)(3). 1311

1311

Works first published abroad in English. Under the Act of 1909, as amended, ad interim copyright was a short-term copyright available to English language books and periodicals which were manufactured and first published abroad. It was secured by registration within six months of first publication abroad and lasted for a maximum of five years from the date of publication. Copyright could be extended to the full 28-year term if a U.S. edition was manufactured and published within five years after first publication abroad, and if a claim to copyright in the U.S. edition was also registered.

1311.01

Both editions registered. If ad interim and full-term registrations were both made within the proper time limits, renewal registration may be made to cover both editions.

1311.02

Single renewal application. A single renewal application can be submitted covering both the ad interim and full-term registrations, regardless of whether or not the U.S. edition contained new matter, provided both editions are eligible for renewal during the same calendar year. If both editions are included on a single renewal application, that application must include information taken from both original registrations. For the special problem presented by an antedated notice, see section 1303.01 above.

1311.03

Separate applications. Where separate applications are submitted, each application must be filed within the 28th calendar year of the term of copyright in the particular edition it covers.The Copyright Office will annotate each application to refer to the other edition.

1311.03(a)

Late application. If the renewal application is received more than 28 years from the end of the year of first publication abroad, registration will be refused because the application was received too late. The applicant may submit a new application covering the U.S. edition alone, if that edition contained new matter, and if the application was submitted during the renewal period applicable to the new matter.

1311.04

Installments. When a work was first published abroad in serial installments and several separate ad interim registrations were made, separate renewal registrations may be made, even though the first U.S. edition was published in a single volume. If the applicant prefers, a single group registration can be made for installments first published as contributions to a periodical, provided the criteria set forth in section 1310.05 have been met.

1311.05

Foreign edition never registered. If the foreign edition of a work was never registered ad interim, but the later U.S. edition was registered, the Copyright Office will accept a renewal application covering the U.S. edition. In the case of an application received during the 28th year measured from the end of the year of foreign publication, a cautionary letter will be sent stating that the registration is of doubtful validity. In the case of an application received more than 28 years from the end of the year of foreign publication, the cautionary letter will explain that renewal registration covers only the new matter, if any, in the U.S. edition. A new matter statement will not be required on the renewal application, unless a new matter statement appeared on the original application.

1311.06

No U.S. edition. Where the Copyright Office records fail to reveal that a U.S. edition of a work was ever registered, the Copyright Office will generally refuse registration for a renewal claim based on an ad interim registration, subject to the special provisions in sections 1311.06(a) and 1311.06(b) below. The Copyright Office will, how ever, correspond in order to determine whether the U.S. edition has been registered, e.g., under a different title.

1311.06(a)

Effect of the Universal Copyright Convention. The UCC came into force with respect to the United States on September 16, 1955. The implementing legislation provides that, upon the corning into force of the Universal Copyright Convention in a foreign state or nation, every book or periodical of a citizen or subject thereof in which ad interim copyright was subsisting on the effective date of said coming into force shall have copyright for 28 years from the date of first publication abroad without the necessity of complying with the further formalities specified. See section 9(c) of the Act of 1909, as amended. Therefore, in such cases the ad interim copyright was extended to the full 28-year term measured from the date of first publication abroad, and such copyrights are renewable in accordance with the general provisions relating to the term for other published works. See section 1303 above. In determining whether renewal registration is possible, the factors to be considered include the following:

1)

Citizenship of the author as shown in the Copyright Office records.

2)

The effective date of adherence to the UCC by the country of which the author was a citizen.

3)

The time between securing ad interim copyright and the effective date of such adherence.

1311.06(b)

Effect of the current Act. In the case of any work in which ad interim copyright is subsisting or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection was extended to endure for the full term or terms provided by section 304 of title 17 of the new law, pursuant to Sec. 107 of Transitional and Supplementary Provisions of the current Act. Thus, for works covered by this provision, a renewal claim will be registered even though there was no registration for a U.S. edition.

1312

Renewal claimants: authors and their successors. In accordance with the copyright law, it is the author, if living, who is entitled to claim renewal copyright with respect to all works other than those enumerated in section 1317 of this chapter. Moreover, if the author is dead, it is the copyright law, rather than the rules of testamentary or intestate succession, that specifies the successive classes of persons entitled to claim renewal copyright. See 17 U.S.C. 304.

1313

Renewal claimants: authors. The author, if living, may claim renewal, whether the work was published in the author's true name, a pseudonym, or anonymously.

1313.01

Author still living. If the author is still living, the renewal application must be filed in the author's own name, even if the author is insane or incompetent.

1313.02

Author's name not in records of original registration. Where an applicant is claiming renewal as the "author", or as any other person entitled to claim renewal if that author is dead, and where that author's name does not appear in the records of the original registration, renewal registration will generally not be made unless that name is placed in the Copyright Office records. The Copyright Office may suggest that an application for supplementary registration be submitted in order either to correct or to amplify the information given in the original record. See Chapter 1500: CORRECTIONS AND AMPLIFICATIONS OF COPYRIGHT RECORDS: SUPPLEMENTARY REGISTRATIONS. In any case, and particularly when a supplementary registration is not suitable, a document supporting the author ship may be recorded in the Copyright Office. The renewal application is annotated to reflect the volume and page number of recordation. A supplementary registration or document is not necessary when the nature of the work makes the omission of the claimant's name natural, e.g., works of multiple authorship, pictorial reproductions, and obviously anonymous works. See also Adverse claims, section 1318.03 below.

1313.03

Term "author" defined for renewal purposes. The term "author," for renewal purposes, refers to the individual who personally wrote or created "renewable matter ll in the work. The term "author" includes editors, compilers, arrangers, translators, illustrators, etc. It does not include employers in the case of works made for hire, publishers, corporations, firms, partnerships, religious orders, fraternal organizations, or any other impersonal entities.

1314

Renewal claimants: widows, widowers, and children. If the author is dead, the author's surviving spouse and children are entitled to claim renewal. 17 U. S. C. 304.

1314.01

Single class. The widow (widower) and children are regarded as a single class of renewal claimants, and applications from any or all will be accepted without question. See DeSylva v. Ballentine, 351 U.S. 570, 30 C.O.Bull. 245 (1956).

1314.02

Definition of widow or widower. The author's widow or widower is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried. 17 U.S.C. 101.

1)

A widow (widower) does not lose his (or her) renewal rights upon remarriage.

2)

A common-law spouse may also be regarded as the "widow" or "widower" for renewal purposes, if the author is deceased.

3)

A divorced spouse is not an acceptable renewal claimant as widow or widower. However, the Copyright Office will not inquire into the validity of a marriage or a divorce.

4)

The terms "wife of the author," "wife of the deceased author," "husband of the author," or "husband of the deceased author" are not acceptable bases of claim. The basis of claim must be stated as either "widow" or "widower" of the author.

5)

The Copyright Office will request a new application correcting the basis of claim if a widow or widower is claiming renewal as the author's "next of kin" or "executor."

1314.03

Definition of children. A person's "children" are that person's immediate offspring, whether legitimate or not, and any children legally adopted by that person. 17 U.S.C. 101.

1)

Legally adopted children are acceptable renewal claimants.

2)

The Copyright Office will register a renewal claim in the name of an illegitimate child, whether paternity has been acknowledged or not.

3)

Stepchildren, as such, are not entitled to claim renewal.

4)

Grandchildren and other descendants beyond the first degree cannot claim renewal as "the children of the deceased author."

5)

The Copyright Office will request a new application giving the correct basis of claim if a child is claiming renewal as the author's "next of kin" or "executor."

1315

Renewal claimants: executors. If the author dies leaving a will, and if no widow, widower, or children are living at the time the renewal application is filed, the author's executor is entitled to claim renewal in his or her own name.

1315.01

Qualification. In order to be regarded as an "executor," a claimant must have been named in the author's will, and presumably must have been qualified in probate proceedings. However, the Copyright Office will not refuse a renewal claim in the name of the the executor, even if the author's will has not been probated. The Copyright Office will accept as an "executor" a claimant described as an "ancillary executor," "substitute executor," "successor executor," or "literary executor." See also section 1316.02 below.

1315.02

Personal right. The right to claim renewal as "executor" is a personal one, and the renewal application must name the individual executor.

1)

The author's legatees, as such, have no right to claim renewal in their own names.

2)

Renewal rights are claimed by the executors not for their personal benefit, but as fiduciaries for the benefit of the legatees under the author's will. See Miller Music Cor. v. Charles N. Daniels, Inc., 362 U.S. 373, 32 C.O.Bull. 307 1960.

3)

A renewal claim cannot be registered in the name of the "Estate of John Doe," even if executors have not yet been qualified under the author's will.

4)

The executor named in the renewal application must be an individual or be a fiduciary organization authorized by law to serve as an executor. A renewal application which does not name as executor an individual or a trust department of a bank will be questioned.

Example:

The renewal application which names a law firm as the renewal claimant in the capacity of executor under the author's will will be questioned because it is unclear whether the law firm is a fiduciary organization authorized by law to serve as executor.

1315.03

Intestate. In no case can the administrator of an intestate author's estate claim renewal.

1316

Renewal claimants: next of kin. If the author is dead and no widow (widower) or children survive the author, and if there is "the absence of a will," the author's next of kin are entitled to claim renewal. 17 U.S.C. 304(a).

1316.01

Definition. The term "next of kin" refers only to blood relatives of the author.

1)

It is not clear whether the term "next of kin" refers only to the living relatives of the nearest degree of consanguinity (defined as the quality or state of being descended from the same ancestor) or whether it also includes the descendants of dead relatives claiming on the theory representation. The Copyright Office will register the claim of any blood relative as "next of kin," regardless of the degree of consanguinity.

Example:

Where an author had two brothers, one of whom died leaving two sons, it is unclear whether the nephews may claim renewal equally with the surviving brother.

2)

The statement of the basis of claim on the renewal application must not consist solely of a statement of relationship, e.g. sister, mother, niece, etc. The claim itself should be stated as "next of kin of the deceased author, there being no will," although kinship may be specified parenthetically.

3)

Statements such as "heirs" or "representatives of heirs" are not acceptable either as claimants or as bases of claim.

1316.02

Will but no executor. If the author left a will, but no executor exists at the time for renewal, the proper renewal claimant is unclear.

1)

However, on the basis of judicial authority, the Copyright Office will accept a claim in the names of the next of kin, except in the situation noted in paragraph 3(c) below.

2)

If it is unclear whether executors still exist, registration may be made in the names of both the executors and the next of kin on separate applications and for separate fees.

Example:

The executor himself is unsure whether or not he was actually discharged.

3)

If the author leaves a will which names no executor, or if the person named cannot or will not act as executor, the court may appoint an "administrator cum testamento annexo" (administrator with the will annexed: administrator c.t.a) who performs the identical functions of an executor. When the estate has been settled and the executor discharged, or when the executor is removed before the estate is completely administered, the court may appoint an "administrator de bonis non cum testamento annexo (administrator de bonis non with the will annexed: administrator d.b.n.c.t.a.) to deal with the remaining or after-acquired property under the will.

a)

The Copyright Office will register renewal claims in the names of administrator c.t.a. or administrator d.b.n.c.t.a. Except as noted in paragraph (c) below, the Copyright Office will also register renewal claims for the same work in the names of both the next of kin and the administrators c.t.a. or administrators d.b.n.c.t.a. on the basis of separate applications and fees.

b)

Where the author's will names an executor who cannot or will not act as executor, or when the estate has been settled and the executor discharged, or when the executor is removed before the estate is completely settled, registration will be made in the names of the author's next of kin, even when the administrators c.t.a. or administrators d.b.n.c.t.a. exist.

c)

If the author left a will without naming an executor, and an administrator c.t.a. or administrator d.b.n.c.t.a. is in existence at the time of renewal registration, an application in the name of the next of kin will be refused on the basis of Gibran v. National Committee of Gibran, 255 F.2d 121, 31 C.O.Bull. 249 (2d Cir. 1958): cert. denied, 358 U.S. 828 (1958).

1317

Renewal claimants: proprietors. The copyright act provides that the proprietor of the copyright may claim renewal in certain specified cases.

1317.01

Definition. The term "proprietor" refers to the owner of the copyright on the effective date of the renewal registration.

1317.02

Derivation of title. In order to claim renewal as "proprietor," the claimant must derive his or her title directly or indirectly from the original copyright owner.

1317.03

Posthumous works. If a work is "posthumous" within the meaning of the copyright law, the proprietor is the proper renewal claimant. Generally, the author's widow, widower, children, executor, or next of kin have no right to claim renewal in a "posthumous work."

1317.03(a)

Definition. A work is not considered "posthumous" if it is published during the author's lifetime: but a work is commonly considered "posthumous" if it is first published after the author's death. However, for purposes of section 304(a) of the copyright law, the term "posthumous work" means any work as to which no copyright assignment or other contract for exploitation of the work has occurred during the author's lifetime and which is unpublished at the time of the author's death. See Bartok v. Boose & Hawkes, Inc., 523 F.2d 941, 40 C.O.Bull. 69 2d C1r. 1975), and H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 139 (1976): see also 37 C.F.R. 202.17(b). Thus, under section 304(a) a work is not "posthumous" if it was merely first published after the author's death.

1317.03(b)

Proper claimant. Where the work is "posthumous" within the meaning of section 304(a) of the copyright law, the appropriate claimant is the proprietor.

1)

Where the applicant asserts that there was neither a contract for exploitation nor an assignment of copyright during the author's lifetime, and the work was unpublished on the date of the author's death, the Copyright Office will make registration in the name of the proprietor.

2)

Where the applicant asserts that during the author's lifetime there was a contract for exploitation but no copyright assignment, it is unclear whether or not the work is "posthumous." See S. Rep. No. 94-473, 94th Cong., 1st Sess. 123 (1975). Therefore, registration will be made in the name of the author's widow, widower, children, executor, or next of kin and also in the name of the proprietor, provided separate applications and fees are submitted.

3)

Where the applicant asserts that there was an assignment of the copyright during the author's lifetime, the work is not considered "posthumous," and the Copyright Office will make the renewal registration in the name of the author's widow, widower, children, executor, or next of kin. Registration will not be made in the name of the proprietor.

4)

Where the proprietor-applicant asserts that the work is "posthumous" only because the work was first published after the author's death, the Copyright Office will inquire whether during the author's lifetime there was a copyright assignment or other contract for exploitation of the work.

5)

Where the work was originally published as a contribution to a periodical and that contribution was not separately registered, there is doubt under the wording of the renewal provisions of the law as to whether the proprietor of such a "posthumous work" may claim the renewal. In such cases, the Copyright Office will accept applications from the proprietor, and also from the author's widow, widower, children, executor,or next of kin, provided separate applications and fees are submitted.

1317.04

Composite works. The proprietor of a periodical, cyclopedic, or other composite work may claim renewal in the work as a whole.

1317.04(a)

Definition. Generally, a composite work is an original publication relating to a variety of subjects to which a number of different authors have contributed distinguishable and separable selections. Thus, a work by a single author consisting of a collection of his writings is not a composite work. Similarly, a work which is the product of joint authorship and common design, or which consists of elements which have been indistinguishably merged into a single entity, cannot be regarded as composite, e.g., musical compositions, dramas, dramatico-musical works, and motion pictures.

1317.05

Individual contributions. While the proprietor of a composite work may claim renewal in the work as a whole, the author of an individual contribution, or the author's beneficiaries, may also claim renewal in the contribution.

*

It is unclear whether the proprietor's claim in the entire work covers everything in the work that is not separately renewed.

*

If a renewal application covering an individual contribution is received too late for registration, the Copyright Office will inform the applicant of the facts of renewal registration for the composite work because the contribution may be protected by the renewal of the general copyright in the composite work in which the contribution was first published.

1317.06

Corporate body. In the case of a "work copyrighted by a corporate body otherwise than an assignee or licensee of the author," the statute gives the proprietor the right to claim renewal.

1317.06(a)

Questionable claim. This basis of claim is always questioned unless it has been established by previous correspondence.

1317.06(b)

When not acceptable. This basis of claim is not acceptable when:

1)

The original copyright claimant was not a corporation.

2)

The individual author of an unpublished work transferred his common-law literary property, or his right to secure copyright, to a corporation.

i)

The corporation is regarded as the author's assignee.

ii)

The fact that the corporation also purchased the author's manuscript does not change its status as assignee.

3)

The work is posthumous, composite, or was made for hire.

1317.06(c)

Corporate body: special circumstances. In cases other than those listed in section l3l7.06(b) above, registration on this basis will be strongly discouraged and will be made only when the applicant indicates that there were special circumstances under which the claim might conceivably be said to apply.

Examples:

1)

Works to which the stockholders of a corporation have contributed indistinguishable parts.

2)

Works written by an official or major stockholder in a corporation, when the works were written directly for the corporation and the arrangement did not amount to employment for hire.

3)

Works written or created by members of a religious order or similar organization, when the individual authors never had a personal property right in the works.

4)

Motion pictures, when the applicant asserts that the work was produced under special circumstances and was not copyrighted by an employer for whom the work was made for hire.

1317.07

Employer in the case of a work made for hire. The proprietor of the copyright shall be entitled to claim renewal in works originally copyrighted by an employer for whom they were made for hire. See 17 U.S.C. 304.

1317.07(a)

Employer-claimant. Generally, in order for this basis of claim to be acceptable, the original copyright claimant must have secured the copyright by virtue of his employment of the "author," rather than through any transfer of rights after the work was completed.

1317.07(b)

Determinations by Copyright Office. The Copyright Office will generally make no effort to determine whether or not a particular agreement constituted employment for hire.

*

A renewal claim as "author" will be questioned when the original records of the registration state that the work was made for hire.

*

The claim will be registered if the individual was listed as "author" by virtue of being an employer in a work made for hire.

*

A renewal claim as "proprietor of copyright in a work made for hire" will be questioned when the original copyright claimant was also the only author listed in the Copyright Office records. The claim will be refused if the person listed as author on the original records was not an employee for hire. However, if an explanation is offered indicating that the "author" was employed for hire, and inadvertently or by agreement with the employer, claimed copyright in his or her own name, the proprietor claim will be accepted.

1317.07(c)

Work made for hire. In order for this claim to be applicable, as the Act explicitly states, the work must have been copyrighted by the employer for whom the work was made for hire.

*

No provision is made under the literal terms of the Act for the case in which the work was made for hire, but the employer transferred his common-law literary property to a third person before either publication or registration as an unpublished work.

*

When this situation is presented, the Copyright Office will register a renewal claim as "proprietor of copyright in a work made for hire," but will point out that the law makes no specific provision for this situation.

1317.07(d)

More than one author. When more than one author contributed to a work, the renewal claimant need not specify that all of the authors were employed for hire.

*

If only some of the authors were employed, this fact should appear on the renewal application.

*

The Copyright Office will accept claims by authors or their beneficiaries and proprietors of copyright in a work made for hire on the same application, provided that no patent inconsistency is presented.

1318

Joint renewal claimants. When the author is dead and there is more than one person in the class of beneficiaries entitled to renew under the statute, registration by one claimant secures renewal for all those who would have been entitled to claim.

1318.01

Several claimants, same application. When a number of different persons are entitled to claim renewal in the same work, the Copyright Office will accept their claims on a single application or on separate applications. It is not necessary that all possible claimants join in applying for registration in order to secure a renewal. If an application for a work is received after its renewal period has expired, and a renewal claim has already been registered in the name of another claimant, the Copyright Office will correspond and point out that it is too late for the registration of this renewal claim, but that registration has been made in the name of another claimant.

1318.02

Later application, same work. Once a renewal registration has been made, the Copyright Office will generally not accept a duplicate

application for renewal registration on behalf of the same renewal claimant.

1318.03

Adverse claims. When an application is received that conflicts with a renewal claim which has already been registered, the Copyright Office will inform the second applicant of the conflicting statements contained in the registered renewal claim, and will request an explanation.

The later claim will be registered without further question, if the applicant reasserts it and the claim is not patently invalid. See also Chapter 100: BASIC POLICIES, section 108.06, concerning adverse claims.

1318.04

Adverse claims: conflicts concerning the author and the author's successors.

1)

When an earlier claim was registered in the name of an author's next of kin, and a new application is submitted in the name of the executor, the Copyright Office will request information concerning the existence of a will.

2)

When a renewal claim was registered in the name of the author, and the widow (widower) now claims, the Copyright Office will request the date of the author's death. If the date is earlier than that on which the first application was filed , registration will be made without further correspondence. If the author was living when registration was made in the author's name,the widow's (widower's) claim may also be registered as a doubtful case, despite the principle that renewal rights vest on the date of a valid registration.

1318.05

Adverse claims: conflicts concerning proprietors, authors, and authors' successors.

1)

When a renewal claim was registered in the name of "a proprietor of copyright in a work made for hire," and a new application is submitted in the name of the individual author, the Copyright Office will request information concerning the circumstances under which the work was written.

2)

When a renewal claim was registered in the name of an individual author, and a new application is submitted as "proprietor of copyright in a work made for hire,"the Copyright Office will request information concerning the circumstances under which the work was written.

3)

When a renewal claim was registered in the name of one of several authors, and a new renewal application is submitted as "proprietor of copyright in a work made for hire" without restricting the claim to the work of a particular author or authors, the Copyright Office will ask whether the claim covers the material written by the person in whose name registration has already been made. If so, registration will be made if the applicant reasserts the claim. If not, a new application should be submitted confining the claim to the material written by employees for hire.

4)

Where the original claim named an employer in a work made for hire as the author, and a renewal application names an individual author, the Copyright Office will write to the renewal applicant requesting information concerning the circumstances under which the work was written.If the applicant asserts that the work was not made for hire, the renewal claim will be registered on behalf of the author or the author's statutory heirs.

1319

Unacceptable renewal claims. The following general principles and practices govern the acceptability of renewal claims.

1319.01

Personal right. The right to claim renewal copyright is a personal right.

1319.02

Deceased person. A renewal claim cannot be registered in the name of a deceased person. The Copyright Office does not search to determine whether or not the renewal claimant is alive. If, however, the Copyright Office has information that the claimant died before the receipt in the Copyright Office of the renewal application, the Office will refuse to register the claim as submitted.

1319.03

Claimant not named, only status given. The renewal right accrues to an individual person or firm, and not to a status. Claims by "the Executor of James Fitzgerald" or lithe executors of the author or by "the next of kin of the author" without specifically naming the claimant are not acceptable.

1319.04

Claimant fails to qualify. The Copyright Office cannot register a renewal claim unless the basis of claim is one that is acceptable under the statute. If none of the claimants listed in the statute exists or can be identified, registration must be refused.

1319.05

Successors or representatives of claimants. The successors or representatives of a person who would have been entitled to claim renewal if still living, are unacceptable renewal claimants. For example, the executor of the author's widow is an unacceptable renewal claimant.

1319.06

Assignment of renewal interests. Registration must be made in the name of the statutory claimant, even though the statutory claimant has assigned all of his or her interests in the renewal term. For example, registration cannot be made in the names of an "assignee," "proprietor," "attorney in fact," or "owner per agreement."

1319.07

Extent of claim. A renewal claim in a published work can cover only the material which was first published in that particular version of the work.

1319.07(a)

Later version. The original author of a published work cannot claim renewal in a later version of that work unless that author contributed to the new matter on which copyright in the later version was claimed. For example, where it appears from the record that an author's original composition was published before an arrangement of it by another person, a renewal claim in the arrangement by the author, based on his original composition, is unacceptable.

1319.07(b)

Revised published version. Where an author's original unpublished work was first published with an arrangement or other new matter by another person, the author's claim to renewal in the published work may be accepted.

[END OF CHAPTER 1300]

Compendium of US Copyright Office Practices, II (1984)/1300

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