• The U.S. Copyright Office will accept an application to preregister a computer program that is intended for commercial distribution. However, the Office will refuse to preregister a claim in the HTML code for a website, because HTML code is a markup language rather than a computer programming language, and thus coding in HTML generally does not result in a computer program.
• A photograph that is intended to advertise or market a particular product or service may be eligible for preregistration, but a family portrait or a photograph taken on a personal vacation would not.
• A photograph of a famous celebrity caught in an embarrassing situation would not be eligible for preregistration, because this type of work does not advertise or market a particular product or service.
For a definition and general discussion of the types of works that are eligible for preregistration, see Chapters 700, 800, and 900.
See generally Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 42,286, 42,288 (July 22, 2005); Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 61,905, 61,906 (Oct. 27, 2005].
1603.2 The Work Must Be Copyrightable
The U.S. Copyright Office will not entertain an application for preregistration unless the work constitutes copyrightable subject matter under Section 102(a) of the Copyright Act. 37 C.F.R.§ 202.16(c)(2).
1603.3 A Portion of the Work Must Be Fixed
Copyright law protects "original works of authorship fixed in a tangible medium of expression" but it does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery." 17 U.S.C. § 102(a), (b). A work of authorship is not eligible for preregistration unless the author began to create the work on or before the date that the application is submitted to the U.S. Copyright Office, and unless at least a portion of the work has been fixed in a tangible medium of expression as of that date. See 37 C.F.R. § 202.16(b)(2)(ii). The amount of material needed to satisfy this requirement varies depending upon the nature of the work:
• If the work is a motion picture, the filming of the work must have commenced.
• If the work is a sound recording, the recording of the sounds must have begun.
• In the case of a musical composition, at least some of the work must have been fixed either in the form of musical notation or in a copy or phonorecord embodying a performance of some or all of the work.
• In the case of a literary work being prepared for publication in book form, the actual writing of the text of the book must be underway.
Chapter 1600 : 7
12/22/2014
