17 U.S.C. § 410 — Registration of claim and issuance of cer-

Page 163 TITLE 17—COPYRIGHTS § 410 (1) the name and address of the copyright claimant; (2) in the case of a work other than an anon- ymous or pseudonymous work, the name and nationality or domicile of the author or au- thors, and, if one or more of the authors is dead, the dates of their deaths; (3) if the work is anonymous or pseudony- mous, the nationality or domicile of the au- thor or authors; (4) in the case of a work made for hire, a statement to this effect; (5) if the copyright claimant is not the au- thor, a brief statement of how the claimant obtained ownership of the copyright; (6) the title of the work, together with any previous or alternative titles under which the work can be identified; (7) the year in which creation of the work was completed; (8) if the work has been published, the date and nation of its first publication; (9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incor- porates, and a brief, general statement of the additional material covered by the copyright claim being registered; and (10) any other information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright. If an application is submitted for the renewed and extended term provided for in section 304(a)(3)(A) and an original term registration has not been made, the Register may request in- formation with respect to the existence, owner- ship, or duration of the copyright for the origi- nal term. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2582; Pub. L. 102–307, title I, § 102(b)(1), June 26, 1992, 106 Stat. 266; Pub. L. 111–295, § 4(b)(2), Dec. 9, 2010, 124 Stat. 3180.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The various clauses of section 409, which specify the information to be included in an application for copy- right registration, are intended to give the Register of Copyrights authority to elicit all of the information needed to examine the application and to make a meaningful record of registration. The list of enumer- ated items was not exhaustive; under the last clause of the section the application may also include ‘‘any other information regarded by the Register of Copy- rights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.’’ Among the enumerated items there are several that are not now included in the Copyright Office’s applica- tion forms, but will become significant under the life- plus-50 term and other provisions of the bill. Clause (5), reflecting the increased importance of the inter- relationship between registration of copyright claims and recordation of transfers of ownership, requires a statement of how a claimant who is not the author ac- quired ownership of the copyright. Clause (9) requires that, ‘‘in the case of a compilation or derivative work’’ the application include ‘‘an identification of any pre- existing work or works that it is based on or incor- porates, and a brief, general statement of the addi- tional material covered by the copyright claim being registered.’’ It is intended that, under this require- ment, the application covering a collection such as a song-book or hymnal would clearly reveal any works in the collection that are in the public domain, and the copyright status of all other previously-published com- positions. This information will be readily available in the Copyright Office. The catch-all clause at the end of the section will en- able the Register to obtain more specialized informa- tion, such as that bearing on whether the work con- tains material that is a ‘‘work of the United States Government.’’ In the case of works subject to the man- ufacturing requirement, the application must also in- clude information about the manufacture of the copies. Editorial Notes AMENDMENTS 2010—Par. (9) to (11). Pub. L. 111–295 inserted ‘‘and’’ after semicolon at end of par. (9), redesignated par. (11) as (10), and struck out former par. (10) which read as follows: ‘‘in the case of a published work containing material of which copies are required by section 601 to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsection (c) of section 601 with respect to that material, and the places where those processes were performed; and’’. 1992—Pub. L. 102–307 inserted at end ‘‘If an applica- tion is submitted for the renewed and extended term provided for in section 304(a)(3)(A) and an original term registration has not been made, the Register may re- quest information with respect to the existence, owner- ship, or duration of the copyright for the original term.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–307 effective June 26, 1992, but applicable only to copyrights secured between Jan- uary 1, 1964, and December 31, 1977, and not affecting court proceedings pending on June 26, 1992, with copy- rights secured before January 1, 1964, governed by sec- tion 304(a) of this title as in effect on the day before June 26, 1992, except each reference to forty-seven years in such provisions deemed to be 67 years, see section 102(g) of Pub. L. 102–307, as amended, set out as a note under section 101 of this title. § 410. Registration of claim and issuance of cer- tificate (a) When, after examination, the Register of Copyrights determines that, in accordance with the provisions of this title, the material depos- ited constitutes copyrightable subject matter and that the other legal and formal require- ments of this title have been met, the Register shall register the claim and issue to the appli- cant a certificate of registration under the seal of the Copyright Office. The certificate shall contain the information given in the applica- tion, together with the number and effective date of the registration. (b) In any case in which the Register of Copy- rights determines that, in accordance with the provisions of this title, the material deposited does not constitute copyrightable subject mat- ter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal. (c) In any judicial proceedings the certificate of a registration made before or within five Page 164 TITLE 17—COPYRIGHTS § 411 1 See References in Text note below. years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be ac- corded the certificate of a registration made thereafter shall be within the discretion of the court. (d) The effective date of a copyright registra- tion is the day on which an application, deposit, and fee, which are later determined by the Reg- ister of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2582.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The first two subsections of section 410 set forth the two basic duties of the Register of Copyrights with re- spect to copyright registration: (1) to register the claim and issue a certificate if the Register determines that ‘‘the material deposited constitutes copyrightable sub- ject matter and that the other legal and formal re- quirements of this title have been met,’’ and (2) to refuse registration and notify the applicant if the Reg- ister determines that ‘‘the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason.’’ Subsection (c) deals with the probative effect of a certificate of registration issued by the Register under subsection (a). Under its provisions, a certificate is re- quired to be given prima facie weight in any judicial proceedings if the registration it covers was made ‘‘be- fore or within five years after first publication of the work’’; thereafter the court is given discretion to de- cide what evidentiary weight the certificate should be accorded. This five-year period is based on a recogni- tion that the longer the lapse of time between publica- tion and registration the less likely to be reliable are the facts stated in the certificate. Under section 410(c), a certificate is to ‘‘constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.’’ The principle that a certificate represents prima facie evidence of copyright validity has been established in a long line of court decisions, and it is a sound one. It is true that, unlike a patent claim, a claim to copyright is not ex- amined for basic validity before a certificate is issued. On the other hand, endowing a copyright claimant who has obtained a certificate with a rebuttable presump- tion of the validity of the copyright does not deprive the defendant in an infringement suit of any rights, it merely orders the burdens of proof. The plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underline the validity of the copyright unless the defendant, by effectively challenging them, shifts the burden of doing so to the plaintiff. Section 410(d), which is in accord with the present practice of the Copyright Office, makes the effective date of registration the day when an application, de- posit, and fee ‘‘which are later determined by the Reg- ister of Copyrights or by a court of competent jurisdic- tion to be acceptable for registration’’ have all been re- ceived. Where the three necessary elements are re- ceived at different times the date of receipt of the last of them is controlling, regardless of when the Copy- right Office acts on the claim. The provision not only takes account of the inevitable timelag between receipt of the application and other material and the issuance of the certificate, but it also recognizes the possibility that a court might later find the Register wrong in re- fusing registration. Statutory Notes and Related Subsidiaries REGISTRATION OF CLAIMS TO COPYRIGHTS AND REC- ORDATION OF ASSIGNMENTS OF COPYRIGHTS AND OTHER INSTRUMENTS UNDER PREDECESSOR PROVI- SIONS Pub. L. 94–553, title I, § 109, Oct. 19, 1976, 90 Stat. 2600, provided that: ‘‘The registration of claims to copyright for which the required deposit, application, and fee were received in the Copyright Office before January 1, 1978, and the recordation of assignments of copyright or other instruments received in the Copyright Office be- fore January 1, 1978, shall be made in accordance with title 17 as it existed on December 31, 1977.’’ § 411. Registration and civil infringement actions (a) Except for an action brought for a viola- tion of the rights of the author under section 106A(a), and subject to the provisions of sub- section (b),1 no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registra- tion of the copyright claim has been made in ac- cordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copy- right Office in proper form and registration has been refused, the applicant is entitled to insti- tute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appear- ance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to deter- mine that issue. (b)(1) A certificate of registration satisfies the requirements of this section and section 412, re- gardless of whether the certificate contains any inaccurate information, unless— (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration. (2) In any case in which inaccurate informa- tion described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate infor- mation, if known, would have caused the Reg- ister of Copyrights to refuse registration. (3) Nothing in this subsection shall affect any rights, obligations, or requirements of a person related to information contained in a registra- tion certificate, except for the institution of and remedies in infringement actions under this sec- tion and section 412. (c) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for in- fringement under section 501, fully subject to the remedies provided by sections 502 through 505 and section 510, if, in accordance with re- quirements that the Register of Copyrights shall prescribe by regulation, the copyright owner—