1005 Transfer of Ownership by Terms of Service
In some cases, an individual author may be asked to accept the terms of service for a website before the author uploads UGC to that site. If the terms of service state that the website becomes the owner of all the exclusive rights in any works that are lawfully uploaded to that site, the author may be deemed to have transferred ownership of the copyright in that UGC through a written, digitally-signed transfer agreement. See Metropolitan Regional Information Systems v. American Home Realty Network, Inc., 722 F.3d591 [4th Cir. 2013].
While this issue has not been addressed by many courts, at present the U.S. Copyright Office will accept an application that names the owner of a website as the claimant for UGC that has been uploaded to that site, but only if the applicant identifies the authors of that content in the application and confirms that the authors transferred their rights to the claimant. The Office encourages applicants to name all the authors of the UGC that is claimed in the application. However, if the content was created by a large number of authors, the Office will accept an application that provides representative names of some of the authors and the number of additional authors who contributed to the content that is included in the claim [e.g., "B.F. Pierce, John Mclntyre, Hank Blake, Walter O'Reilly, and 14 others"). In any claim of ownership involving a "click-through" agreement or terms of service agreement, the claimant must know and have a record of the names of the authors who transferred ownership of all the exclusive rights to the claimant. To verify this requirement, the registration specialist may request additional information from the applicant. In such cases, the specialist will not accept transfers from anonymous, pseudonymous, or unidentified authors as a valid transfer of ownership.
1006 Copyrightable Subject Matter
Section 102(a) of the Copyright Act states that copyright protection only extends to "original works of authorship." 17 U.S.C. § 102(a). To satisfy this requirement, a work must be fixed in a tangible medium of expression, it must be created by a human being, it must constitute copyrightable subject matter, and it must contain a sufficient amount of creative expression.
A website in and of itself is not explicitly recognized as copyrightable subject matter, although it may contain copyrightable subject matter that falls within one or more of the categories of authorship set forth in Section 102(a), and/or it may qualify as a compilation, a collective work, or a derivative work. A website is merely a medium of fixation for works of original authorship, but it is not a work of authorship in and of itself. In other words, it is a vehicle for the dissemination of content, which may or may not be copyrightable. Like any medium for copyrightable expression, such as a book, DVD, or CD-ROM, it is the content of the website — not the medium of expression — that comprises the copyrightable authorship that may be registered with the U.S. Copyright Office.
Websites may contain three layers of potentially copyrightable authorship:
• Websites contain content that is made perceptible on the website's pages in the form of text or digital files. Websites usually contain multiple forms of content, such as text, computer programs, photographs and other two-dimensional artwork,
Chapter 1000 : 10
12/22/2014
