• For a computer program, at least some portion of the source code or object code must have been fixed.
• For an advertising or marketing photograph, the photograph must have been taken. In the case of a group of photographs intended for simultaneous publication, at least one of the photographs in the group must have been taken.
37 C.F.R. § 202.16(b)(2)(ii)(A)-(F). Although a portion of the work must be fixed in a tangible medium of expression in order to seek preregistration, the applicant should not submit a copy or phonorecord of the work or any portion of the work with the application for preregistration. For a discussion of this issue, see Section 1606.7.
1603.4 The Work Must Be Unpublished
Preregistration protects unpublished works that are being prepared for commercial distribution. See 17 U.S.C. § 408(f)(1). Therefore, the U.S. Copyright Office will not entertain an application for preregistration unless the work is unpublished as of the date that the application is submitted. The Copyright Act defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. § 101. In addition, "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." For example, a sound recording is considered published if it has been offered to a group of disc jockeys for purposes of public air play, and a motion picture is considered published if it has been delivered to a number of distributors for purposes of theatrical exhibition. See Preregistration of Certain Unpublished Copyright Claims, 70 Fed. Reg. 42,286, 42,287 (July 22, 2005).
1603.5 The Work Must Be Intended for Commercial Distribution
To be eligible for preregistration, the work of authorship must be in the process of being prepared for commercial distribution. See 17 U.S.C. § 408(f)(1); 37 C.F.R. § 202.16(b)(2)(h). To satisfy this requirement, the applicant must certify that the work is being prepared for commercial distribution and that there is a reasonable expectation that the work will be commercially distributed to the public. See 37 C.F.R. § 202.16(b)(2)(i).
1604 Preregistration Distinguished from Registration
1604.1 Preregistration Is a Temporary "Placeholder" for an Actual Registration
A preregistration is merely a placeholder for or a prelude to an actual registration. Specifically, a preregistration allows a copyright owner to pursue an infringement action and to seek statutory damages and attorney's fees before the work has been completed and released to the public. However, to secure the benefits of this procedure, a copyright owner must register the claim either within three months after the first publication of the work or within one month after the copyright owner discovers that the work has been infringed. See 17 U.S.C. §§ 408(f)(3), 411(a), 412.
Chapter 1600 : 8
12/22/2014
