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June 28, 2006Client Alert

New Copyright Office Procedure For Preregistration of Unpublished Works

The U.S. Copyright Office has developed an electronic preregistration procedure for unpublished works being prepared for commercial distribution. The new procedure, established pursuant to the Artists' Rights and Theft Prevention Act of 2005, permits the preregistration to serve as a copyright place-holder for combating pre-release infringements.

Only certain classes of creative works that are found to have a history of pre-release infringement are covered. These are motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (including videogames) and advertising or marketing photographs.

The new preregistration application must be submitted electronically through the Copyright Office web site at www.copyright.gov, with a $100 filing fee. The application requires a detailed description of the work (under 2,000 characters, about 330 words) and certification that the work is being prepared for commercial distribution. Although a signed distribution contract is not required, preparation of the work must have begun and some portion of the work to be preregistered must be "fixed in a tangible means of expression." This requirement varies for each type of work, as follows:

  1. for motion pictures, filming must have commenced;
  2. for sound recordings, recording must have commenced;
  3. for musical compositions, either some musical notation must be written or a copy or phonorecord must contain a performance of some or all of the work;
  4. for a literary work being prepared for publication in book form, actual writing of the text must have commenced;
  5. for a computer program, some source or object code must have been written; and
  6. for an advertising or marketing photograph, at least one photograph must have been taken.

This procedure does not provide evidence of the validity of the copyright or the facts in the application. Preregistration further does not create any presumption that the Copyright Office will register the full work when it is submitted. What preregistration does provide is access to the federal courts to challenge predistribution infringement.

This new procedure can protect your rights in creative works that are particularly prone to predistribution infringement. We can advise you whether your work is a good candidate for this type of protection and obtain it for you.

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