408 Exclusive Licensees and Nonexclusive Licensees
An exclusive licensee is a party who has been granted one or more of the exclusive rights set forth in Section 106 of the Copyright Act, or any subdivision of those rights. Exclusive licensees are considered owners of those right(s) during the term of the license. A nonexclusive licensee is a party who has the right to use a work or an exclusive right in the work, but does not have the right to prevent others from using the same work. Nonexclusive licensees are not owners of the right(s) or parts thereof, but rather, they are considered authorized users.
The Copyright Act states that only “the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim.” 17 U.S.C. § 408(a). Although an exclusive licensee who owns one or more of the exclusive rights is entitled to submit an application, only an exclusive licensee who owns all of the exclusive rights in a work is entitled to be named as a copyright claimant. 37 C.F.R. § 202.3(a)(3). An exclusive licensee with less than all rights may submit an application by naming the author as the claimant.
As a general rule, a nonexclusive licensee is not entitled to be named as a copyright claimant or to submit an application to register a copyright claim, because a nonexclusive licensee is neither the “owner of copyright or of any exclusive right in the work.” 17 U.S.C. §408(a); see also 17 U.S.C. § 101 (definition of “transfer of copyright ownership,” which explicitly excludes nonexclusive licenses). A nonexclusive licensee may certify or submit an application to register the copyright only if the licensee is a duly authorized agent acting on behalf of the author or a person or entity that owns all of the rights under copyright that initially belonged to the author.
409 Authorized Agents
An author, a copyright owner who owns all of the rights in the work, or an owner of one or more of the exclusive right(s) may use a duly authorized agent to submit an application on their behalf. Examples of such agents include, but are not limited to, legal guardians, business managers, literary agents, and attorneys.
In most cases, the correspondent is a duly authorized agent of one or more of the parties listed above, and as a general rule, the U.S. Copyright Office will direct all communications concerning the application to that person. See Section 403.
The Office imposes no special qualifications or tests for authorized agents (including attorneys) before they may file applications or otherwise conduct business with the Office. Nor does the Office require applications to be prepared or submitted by an attorney. In certain special cases the Office may suggest that the claimant consider seeking legal advice, but the Office does not furnish the names of copyright attorneys, publishers, agents, or other similar information. See 37 C.F.R. § 201.2(a)(2).
As a general rule, the Office will accept the statement on the application certifying that the person who signs the application is an authorized agent of the author or an owner of the exclusive rights in the work. In some circumstances, the Office may ask an alleged agent to submit documentation showing that he or she is in fact authorized to act for one or more of those parties.
