This is a Citations and Case Summaries page of the
Click below to go to:
About This Page
This page contains the following subsection:
06A.1 — deposit made too early (go there)
1909 Act: §§11, 12, 13
1947 Act: §§12, 13, 14
1976 Act: §§407(2), 408(b)
CFR: § 202.19 Deposit of published copies or phonorecords for the Library of Congress;
§ 202.20 Deposit of copies and phonorecords for copyright registration;
§ 202.21 Deposit of identifying material instead of copies;
§ 202.22 Acquisition and deposit of unpublished audio and audiovisual transmission programs;
§ 202.23 Full term retention of copyright deposits;
Appendix B to Part 202—“Best Edition” of Published Copyrighted Works for the Collections of the Library of Congress
Appendix B to Part 202, item III. Motion Pictures
“… the register of copyrights may… require the proprietor of the copyright to deposit [copies], and… in default of the deposit of copies of the work within [time limits]… the proprietor of the copyright shall be liable to a fine…, and the copyright shall become void.” (1909 Act, §13; emphasis added; verbatim other than capitalization in 1947 Act, §14)
The 1976 Act lists fines for noncompliance with the deposit requirements but says nothing about copyright becoming void.
Circulars 7b, 7d
“Works first published before March 1, 1989, are subject to mandatory deposit if they were published in the United States with notice of copyright. In general, within 3 months of publication in the United States, the owner of copyright or of the exclusive right of publication must deposit two copies (or, in the case of sound recordings, two phonorecords) of the work in the Copyright Office for the use or disposition of the Library of Congress.
“The Copyright Office has issued regulations exempting certain categories of works entirely from the mandatory deposit requirements and reducing the obligation for other categories. If copyright registration is sought, the same deposit may be used for the mandatory deposit and for registration.” (Information Circular 3)
“To enforce this legal obligation, however, or to ensure a more rapid deposit of a work the Library needs promptly, the Register of Copyrights may make a written demand for the required deposit at any time after publication.
“If the required deposit is not made within 3 months of the demand, the person or organization obligated to make the deposit is liable for a fine of not more than $250 for each work plus the retail price of the copies; if the refusal to comply is willful or repeated, an added fine of $2,500 may be incurred.” (Information Circular 7d)
“In August, 1932, Liveright, Inc., published and offered for general sale a book written by two of the respondents and printed by another, which contained material substantially identical with an article contained in The Washingtonian of December, 1931. The usual notice claimed copyright of this book. August 26, 1932, copies were deposited in the Copyright Office and certificate of registration issued… .
“The Act of 1909 is a complete revision of the copyright laws, different from the earlier Act both in scheme and language. It introduced many changes and was intended definitely to grant valuable, enforceable rights to authors, publishers, etc., without burdensome requirements; ‘to afford greater encouragement to the production of literary works of lasting benefit to the world.’ Under the old Act deposit of the work was essential to the existence of copyright. This requirement caused serious difficulties and unfortunate losses. (See H.R. Report note 2). The present statute (sec. 9) declares—‘Any person entitled thereto by this Act (title) may secure copyright for his work by publication thereof with the notice of copyright required by this Act (title ( 18)) … .’ 17 U.S.C.A. 9. And respondents rightly say ‘It is no longer necessary to deposit anything to secure a copyright of a published work, but only to publish with the notice of copyright.’…
“Although immediately upon publication of The Washingtonian for December, 1931, petitioner secured copyright of the articles therein, respondents maintain that through failure promptly to deposit copies in the Copyright Office the right to sue for infringement was lost. In effect, that the provision in section twelve relative to suits should be treated as though it contained the words ‘promptly’ also ‘unless’ instead of ‘until’, and read—No action or proceeding shall be maintained for infringement of copyright in any work unless the provisions of this Act with respect to the deposit of copies promptly and registration of such work shall have been complied with… .
“Petitioner’s claim of copyright came to fruition immediately upon publication. Without further notice it was good against all the world. Its value depended upon the possibility of enforcement.
“The use of the word ‘until’ in section twelve rather than ‘unless’ indicates that mere delay in making deposit of copies was not enough to cause forfeiture of the right theretofore distinctly granted… .
“The Act nowhere defines ‘promptly’ and to make the continued existence of copyright depend upon promptness would lead to unfortunate uncertainty and confusion. The great number of copyrights annually obtained is indicated by note 3, supra. The difficulties consequent upon the former requirement of deposit before publication is pointed out in the Committee Report. These would be enlarged if whenever effort is made to vindicate a copyright it would become necessary to show deposits were made promptly after publication especially since there is no definition of ‘promptly’.
“Section thirteen authorizes the register of copyrights to give notice if he finds undue delay and to require deposit of copies. Upon failure to comply within three months the proprietor shall be subject to a fine and the copyright shall become void. Evidently mere delay does not necessarily invalidate the copyright; its existence for three months after actual notice is recognized. Without right of vindication a copyright is valueless. It would be going too far to infer that tardiness alone destroys something valuable both to proprietor and the public… .
“A certificate of registration provided for by section fifty-five apparently may be obtained at any time and becomes evidence of the facts stated therein.
“Sections 23 and 24, which permit renewal of a copyright by application and registration within its last year although the deposited copyrighted publication may have been disposed of under Sections 59-60, give clear indication that the requirement for deposit is not for the purpose of a permanent record of copyrighted publications and that such record is not indispensable to the existence of the copyright.”
King Features Syndicate provided to newspapers King Features Illustrated Weekly, a weekly magazine sold to be bound within newspapers and containing “independent and distinct contributions of various authors and artists in the form of cartoon or comic strips, special articles, etc. All of the contributions contained within each of the volumes of the said books have been brought together and published as a unit.”
Each weekly issue contained proper notice in the name of King Features Syndicate, Inc., which submitted to the Register of Copyright the appropriate fee each week along with the application and “two complete copies of the only complete edition then published”.
The Register held the opinion that the deposits “consisted of ‘page proofs’ of contributions to newspapers and the [Register] contended, therefore, that the newspapers in which the material … appeared should be deposited and a separate fee for the registration of each item of such material … be paid instead of the deposit of said books… The sheets contained within the volumes of ‘[King Features] Illustrated Weekly,’ and within the volumes of ‘Weekly’ are printed on one side only; there is an absence of pagination; two grades of paper appear to have been used … those grades being known in the trade as ‘coated paper’ and ‘English finish’; each of the items contained within the said books bear a separate notice of copyright in the name of the plaintiff and most of the items therein have a so-called ‘release date’ indicated there, said release date being the earliest date of newspaper publication, authorized by plaintiff, of the material; …”
The Court ruled that the deposited copies “constituted and were the best editions of the said works then published.”
Also, “the appearance or publication of certain or all of said component parts in newspapers … constituted a mere publication of said component parts and the plaintiff, therefore, should not be required to deposit copies of said newspapers or to apply for a special registration in respect of said republished component.”
Plaintiff claimed that their “Asteroids” videogame was infringed by defendant’s “Meteors.” An argument made to circumvent any ruling on infringement was that the deposit requirements were not met by one of the games. (This was in the era of games being pre-loaded into consoles with the screen and processor, then installed in arcades or pizza parlors for use by players who paid to have limited time at the controls.)
“The Copyright Office regulation, 37 C.F.R. 202,20(d), allows the Register of Copyrights to permit the deposit of only one copy or ‘alternative identifying material.’ Given the bulkiness and cost of the actual video game, a videotape of the audiovisual presentation in the game is a reasonable ‘alternative identifying material.’” The deposit had been such a permitted alternative.
For the record, the Court judged the two games “not substantially similar.”
Cases Summarized in Other Sections
|Bouvé, Register of Copyrights vs Twentieth Century-Fox Film Corporation (launch this) concerned the Register of Copyrights objecting that the page proofs submitted as the best edition weren’t the best, even though they were the only edition at the time.
Cardinal Film Corp. vs Beck (launch this) had infringers of Cecil B. DeMille’s movie Joan the Woman arguing that copyright was invalidated owing to the timing of the copyright deposit.
Esther Larose Harris vs Coca-Cola Co. (launch this) had a copyright owner (in the Uncle Remus stories) depositing with the Library of Congress the 1895 edition with different illustrations than the 1880 edition (which was already copyrighted and deposited), even though no separate copyright registration was filed on the 1895 edition.
From the Code of Federal Regulations, Title 37, § 202.19 Deposit of published copies or phonorecords for the Library of Congress:
“(c) Exemptions from deposit requirements. The following categories of material are exempt from the deposit requirements of section 407(a) of title 17:
“(5) Automated databases available only on-line in the United States.
“(11) Works published only as embodied in a soundtrack that is an integral part of a motion picture. This category does not exempt the owner of copyright, or of the exclusive right of publication, in the motion picture, from the applicable deposit requirements for the motion picture.
“(12) Motion pictures that consist of television transmission programs and that have been published, if at all, only by reason of a license or other grant to a nonprofit institution of the right to make a fixation of such programs directly from a transmission to the public, with or without the right to make further uses of such fixations.”
06A.1 deposit made too early
1909 Act: §12
1947 Act: §13
1976 Act: §407(2)
EDITOR’S NOTE: The situation discussed in this section does not affect any works that could be under copyright at this time or (barring further change in the law) in the future. This section is included because the fact that the copyright law once specified exacting time rules concerning deposit, is illustrative of how exact and unforgiving the laws can be.
William S. Gottsberger wrote The Ebers Gallery, and on September 18, 1885, he deposited the title of this with the Library of Congress. On November 28, 1885, he deposited two copies of the completed book. However, on November 14 he had shipped copies. In all, 23 copies had been sent prior to November 18, which had been the beginning of the 10-day window for first sale leading up to the date on which deposit occurred. One copy had been sent October 27, for which remittance had been sent November 18 and received November 23. By not depositing within ten days of first sale, copyright was forfeited. That the book was not advertized until December 1 is immaterial.
Under the Copyright Act of March 3, 1891, deposit of the work was required before publication. In the case of the book How to Apply Matt, Bronze, La Croix, and Dresden Colors to China, the publisher assumed that the law had been unchanged from the previous rule allowing 10 days. (The 1891 rule didn’t remain law for long.) This book was published before the required copies were delivered to the Library of Congress. The copyright was rendered void.
(The same two parties had litigated over the same book two years earlier. See under copyright notice name.)
The Copyright Registration and Renewal Information Chart and Web Site
© 2007 David P. Hayes