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I’m at the Copyright Office Comes to California program in San Jose. This post represents my impressions of the proceedings, not a direct quote or transcript. My comments are in square brackets. This is a copyright-wonk sort of event, so let me know in the comments if there’s something you’re interested in and don’t understand.

John Ashley is talking about the nuts and bolts of registration. These notes are pretty incomplete.

Fixation must be in a form from which someone might unlawfully copy. [I’ve never heard the requirement stated this way before, and it strikes me as incredibly sensible.]

The Office’s public information office is 202-707-5959, for questions from the public. There are also numbers for sections of the examining division for difficult, specific questions about registrations that can’t be answered by the public information office. Literary works section: 202-707-8250. Performing arts section: 202-707-6040. Visual arts section: 202-707-8202.

Why register? Well, the usual things (prima facie validity, statutory damages, attorney’s fees), but also the Customs Service requires registration before they’ll help you stop infringing importation. Also, 205(c) says there’s constructive notice of the facts contained in recorded documents (not the registration itself, which is covered by 410(c), which says there’s prima facie evidence of the facts in the registration as well as its validity).

Best practices. Avoid section 102(b) terms (categories excluded from copyright, like processes and styles) or anything synonymous. Do use terms from 101, 102(a), and 103. Avoid trademark and patent terms (novel, look and feel, etc.).

Examiners make decisions about close calls for works that might be too short or otherwise containing no authorship according to a “rule of doubt.” If it’s very close, the registration issues, unless it implicates some special public policy from 102(b). “We try to register your work.”

Works for Hire. We accept your assertions regarding corporate authors. But when an individual is named as the author and it seems a commissioned work is involved [which is usually not actually a work made for hire], we ask questions. There end up being a lot of corrections to these, so we try to head them off. Compare CCNV v. Reid with Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992). We rely on Restatement 2d of Agency section 228 to decide whether they’re an employee. The best case on this sort of thing is Avtec Systems v. Peiffer, 21 F.3d 568 (4th Cir. 1994).

Alternative names for author or claimant. Don’t give multiple names for a single legal entity without explaining the relationship between those names. Explain using d/b/a, a/k/a, t/a (”trading as”), new name after merger, etc. Avoid designating separate legal entities as alter egos. Don’t list licensees as claimants (unless they’re an exclusive licensee filing the application.)

Derivative Works. Declare preexisting materials. It’s good to do it even if you’re borrowing even a very small amount. Especially if you have permission, you ahve to declare it. The statute says in 409 that you always have to declare and doesn’t say amount (including de minimis). We think it’s a rule of reason. When describing the new matter, be specific rather than general to facilitate examination.

Computer-aided changes to existing works. This is a problem across all subject matter. Inherently suspect terms include enhanced, digitized, scanned, cropped, burned, cleaned up, restored. These are references to craft, not authorship. We need to know what new protectible authorship resulted from these techniques. We think this sort of thing is presumptively sweat-of-the-brow, not creative authorship. You have to explain. Arguably, some photo restoration could be copyrightable (putting in missing bits, for example) — but mere copyists don’t get copyright.

Characters. We don’t register characters. We register works in which characters appear. Courts have to decide when a character is developed enough to be separately protectible.

Architectural Works. We refuse all claims created on paper before 12/1/1990 but not constructed until after 12/31/2002. This is statutory. We refuse interior design claims. The interior architecture is protected but not the interior design, says the legislative history. We don’t register selection and arrangement of rug to table to lamp, even if you claim them as compilation. The resulting “compilation” just doesn’t fit in 102(a). [That is such a cool issue. I never thought of that.]

Websites. The web designer frequently doesn’t own the content, but tries to register the overall site. We frequently send correspondence. Our current rule is that we don’t register screen format, layout, or functional design. (This may change.) If it’s only the spatial arrangement of content on the page, we reject that. This is from ML260 on book design. You have to disclaim preexisting materials. Published or unpublished? Still unresolved — you decide, just apply as if it’s one or the other and make sure you meet the requirements. We’re not challenging that decision. How to register a database or blog depends on the site’s organization. There are circulars (62 and 65) about this sort of thing.

Supplemental Registrations. You can “correct and amplify” on form CA. Always include the original certificate. This can only happen if we’ve already issued the original registration. Explain what’s going on. See whether you need to change the WMFH or transfer fields if you’re correcting the author claimant fields. If there’s an ex-post change to the facts, you have to record a document, not correct the registration.

Cancellations. Only the reasons in 37 CFR 201.7 work. Nothing else. You have to specify which reason. If the court tells the owner to cancel, then the party has to come to us. No third party cancellations, and there’s no interference proceeding.