are based entirely upon the original drawings, which he claims were first published in 1977. He has sought to present his reconstructed drawings as a substitute for the originals that apparently no longer exist. To accomplish this, he must show that the reconstructions are virtually identical to those originals. All of the recitations in the certificate pertain to the attached “work,” which is Seiler’s reconstructions. None of the statements in the certificate can be of any use therefore until Seiler proves that the reconstructions are the same as the originals. Prima facie evidence of statements in the certificate is irrelevant until that proof has been made.
Moreover, the certificate obtained in 1981 and the attached reconstructions do not purport to speak on the ultimate issue of whether Seiler’s reconstructions are true to the supposed originals. In fact, no indication appears on the certificate that the Copyright Office was even aware that the attached “work” was reconstructed, and not a true copy of the original work.[1] Seiler has not presented his application for a certificate, or any other evidence indicating that he advised the Copyright Office of the nature of the work he was submitting. The Copyright Act does not contemplate the copyrighting of a now non-existent original on the basis of a tendered reconstruction. Section 408 specifies the types of material that must be deposited along with an application for a certificate. The permissible materials include bona fide copies of the original work only; there is no mention of “reconstructions.” If it were otherwise, the possibilities for fraud would be limitless.[2]
The certificate of copyright registration is not evidence of any material fact in Seiler’s case. Section 410(c) does not compel its submission.
AFFIRMED.
William Lyle WORATZECK, Petitioner-Appellant,
v.
James R. RICKETTS, and Donald Wawrzaszek, Respondents-Appellees.
No. 86–2367.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 16, 1986.
Decided Sept. 16, 1986.
- ↑ There is one space on the certificate in which Seiler might have indicated that his submission was only a reconstruction of earlier work that he wished to copyright. This section of the form is headed “Compilation or Derivative Work,” and asks the artist to “[i]dentify any preexisting work this work is based on or incorporates.” This part has been left blank.
- ↑ Even if section 410(c) were applicable here, it only makes the certificate prima facie evidence of the facts stated in the certificate. The trial court determined in a pre-trial hearing that Seiler had lost or destroyed the originals in bad faith. That finding overcame any presumption of veracity of the attached work that might have come from the copyright certificate.
