Effective Date of Registration
Expressive v. Informative (Works)
Group Registration of Photographs
Perform (Publicly) a sound recording by means of a digital transmission
Administrative Class – The U.S. Copyright Office registers all eligible works in the following administrative classes: Literary Works, Works of the Visual Arts, Works of the Performing Arts, Sound Recordings, Motion Picture/Audio-Visual Works, and Single Series Issues. (The Beta version of RightsClick does not support registration of Single Series Issues.)
Amount (used re. fair use) – There is no set amount of a work which may be used that automatically qualifies as a fair use, or vice versa. This factor is not only about the amount taken, but consideration is also given to whether the “heart of the work” was used. The “heart” may be the main expression in an image or the refrain of a song. However, even the use of a short segment from a two-hour motion picture may not favor a finding of fair use.
Anonymous/Pseudonymous Works – Authors of protectable works may be anonymous or pseudonymous, and the works may be registered as such. The term (duration) of protection for these two conditions of authorship is 95 years from the date of first publication or 120 years from the creation date.
Application Date – The date your complete application is received by the Copyright Office for registration. A complete application consists of three elements: the completed application form, the deposit copy, and the appropriate fee. The legal significance of this date is that it serves as the “effective date of registration” pursuant to an infringement claim, which can affect the remedies available to you in litigation (e.g., it’s better to have an effective date of registration that is prior to when an infringement begins).
Author/Authorship – The legal term for any creator of any type of copyrightable work is author. A work may be authored by one individual or by two or more joint authors. See Joint Authorship. Authors can also be business entities (see Works Made for Hire). By law, copyright vests automatically in the author at the moment a work is created or “fixed” in a tangible medium of expression.
C&D Letter (Email) – A notice sent by a rightsholder demanding that a party making unlicensed use of a work Cease & Desist making the infringing use. A C&D may also contain demand for payment as compensation for the unlicensed or may offer continued use of the work for a licensing fee.
Copyright Claims Board (CCB) – The Copyright Claims Board is the small-claim tribunal created by the CASE Act (2020). The CCB is part of the Library of Congress and overseen by the Library and the U.S. Copyright Office, which is also part of the Library. The CCB will begin operations in 2022 and function much like a voluntary, alternative dispute resolution process to adjudicate small copyright claims.
Claim –
- Allegation by a rightsholder—either by communication or filing with a court or the CCB—that a named party has infringed one or more of the exclusive rights under U.S. Copyright Law.
- This is also the term used by the Copyright Office in the registration process. The author or owner files an application for a claim of copyright in a work.
Claimant – Synonymous with plaintiff in a case against an alleged infringement, the owner of copyright rights, or person on whose behalf copyright registration is sought. For registration purposes, a Claimant may also be someone other than the Author (e.g., a party to whom copyright rights have been transferred).
Commercial Use – Any use of a protected work for the purpose of financial or promotional advantage by the user. A non-for-profit entity, or a podcaster who does not get paid can still make a commercial use, if the use promotes or benefits their agenda, career, or institution in some way. The first Fair Use factor inquires whether the use was commercial or noncommercial; commercial uses generally are less likely to be fair use.
Copyright (rights) – A bundle of exclusive rights vested in the author of a work, which the author may exercise as he or she wishes. Copyright protection attaches automatically at the moment a work is created, but registration is important for enforcement of those rights. Copyright rights may be transferred, sold, and/or bequeathed like other property. This is also known as an exclusive license. Alternatively, an author may grant a non-exclusive license or permission to exploit one or more right. The exclusive rights under U.S. law are listed in Section 106 of the Copyright Act. These are the right to 1) reproduce the work; 2) prepare derivative works; 3) distribute copies; 4) publicly perform a work; 5) publicly display the work or copies of the work; 6) publicly perform sound recordings by digital transmission.
Copyright Claims Officers – Administrative judges of the (small claim) Copyright Claims Board who will decide cases brought before this tribunal.
Creation Date – The date on which the work was first “fixed” in a medium from which the work can be perceived (e.g. the day a photo is taken or a song is recorded).
Derivative Work – A work based on one or more pre-existing works. These include but are not limited to sequels, spin-offs, musical arrangements, translations, adaptations, and movies. A derivative can infringe the rights in the underlying work if made without permission. If a derivate is authorized, the new creative expression in the derivative work is copyrightable.
de minimis – A legal term describing an amount used of a protected work that is too small to support a claim of infringement.
Display (publicly) – To make a work visible to the public whether in physical space (e.g. a billboard) or online (e.g. a social post). Typically applied to visual works, even a page of a book or sheet music could constitute a display. In order to be a “public” display, it must be shown: 1) at a place open to the public; 2) where a substantial number of people are gathered, beyond the normal circle of a family and its social acquaintances; OR be transmitted to the public (such as online).
Distribute – To make copies of a work available to the public. Performing or displaying a work via the internet, even it reaches many users, is not distribution if it does not result in the viewer to coming into possession of a copy.
DMCA Notice – “DMCA” stands for Digital Millennium Copyright Act, a law passed in 1998. Among its provisions, the law created a process by which copyright owners may send notices to the operators of internet platforms to request removal of allegedly infringing material or activity. The platform is supposed to remove the infringing material “expeditiously,” and if they don’t, they risk losing the “safe harbor” protection the DMCA provides them against damages awards for copyright infringement on their systems. While a notice is fairly easy to send, the problem is that the infringing material can be reposted, even by the same user, and the takedown process must be repeated. Many copyright owners have complained about having to send many, many notices and still seeing unauthorized use of their works. Most recently, we have been hearing that some of the biggest social media platforms are routinely either ignoring notices or responding with unnecessary further questioning in an apparent effort to frustrate claimants.
DMCA Agent – In order to benefit from the protection against infringement damages awards, every website is required to have an agent listed with the U.S. Copyright Office to which takedown notices must be sent. The agent registry can be searched here.
eCo – The Copyright Office’s name for its online registration system.
Effective Date of Registration – The date the Office receives a complete application for registration, which includes the completed form, the required deposit copy(ies), and the fee, unless the application is rejected for error or if the Examiner determines that the work submitted is not protectable by copyright.
Entities – Organizations can author and/or own copyrights. Copyrights may be transferred to an entity, or the entity may hire the creators who make a work. See Works Made For Hire (WMFH).
Examiner – (Also, Registration Specialist), employee of the U.S. Copyright Office who reviews applications for registration (the official title is Registration Specialist). Most claims of copyright are accepted. If an application appears to contain errors, the examiner may contact the applicant by email. Note that statements of fact (e.g. whether a work is published) are the responsibility of the applicant, and neither examiners nor RightsClick has a way of knowing whether this information is accurate.
Exceptions – The term for limitations to an author’s exclusive copyright rights. There are a number of specific, statutory limitations (e.g. for schools). The broadest exception in U.S. copyright law is fair use.
Expressive v. Informative (works) – Generally speaking, an expressive work is one that is more creative (e.g., a novel) in contrast to one that is more informative (e.g., a guide to bird watching). One could write a highly creative guide to birdwatching, but some of the material in such a factual work would naturally be unprotectable facts about birds. Where a work is a mix of expression and information, answer that the work is expressive. For example, photographs are often both expressive and informative but should generally be identified as expressive because a copy of the entire image includes copying of the expressive elements. Ultimately, the scope of protection for various elements of any work is a case-specific determination by a judge/jury.
Fair Use – A broad and flexible exception to copyright that allows certain unlicensed uses of protected works. Fair use is an equitable doctrine applied by the courts on a case-by-case basis to the specific facts and circumstances, weighing four interdependent factors listed in the statute, as well as other factors the court may consider appropriate. Fair use decisions are notoriously difficult to predict. RightsClick (Beta) is designed to provide a generalized assessment to help you make decisions about how to proceed.
Fixed/Fixation – Legally synonymous with creation, the act of manifesting a copyrightable expression in a tangible medium (e.g., writing a poem on paper, recording a chorographic work on video). Works can also be fixed on computing devices. In the U.S., copyright only applies to works that are fixed in a tangible medium of expression. The thoughts in your head or an unrecorded live performance are not copyrightable.
Foreign works – Most works of non-U.S. authors are protected by copyright in the United States. However, works by authors in a handful of countries that have not joined any of the major copyright treaties or agreements, such as the Berne Convention or the TRIPS Agreement of the World Trade Organization, may not be. If you have any question as to whether your work is protected in the U.S., you should consult an attorney. We plan for future versions of RightsClick to be able to provide further guidance in this area.
Group Registrations – The Copyright Office allows applicants to submit up to ten works (20 works for sound recordings that are also the registration for the musical work embodied in the sound recordings) for registration as a group on a single application and for a single filing fee. Photographs have special group registration rules – see Group Registration of Photographs. For all other works, all the works must be unpublished and by the same author. For each of the works in the group, you will need to provide a deposit copy and the title.
Group Registration of Photographs – Photographs may be registered in groups of up to 750 photographs in a single registration application and for a single fee. All the photos in the group may be published or all the works in the group may be unpublished, but you may not mix published and unpublished photos in the same group registration. All the photos must be by the same author and on behalf of the same claimant. For a group of published photos, they must all have been published in the same year. You will need to provide a deposit copy for each photo and a list of the titles and corresponding file names (even if they are the same as the titles) for all the photos in the group. You will also need a title for the entire group.
Infringement – Making unlicensed use of a protected work in a manner which violates one or more of the exclusive rights under copyright and does not qualify for any exceptions in the law.
Joint Authorship – In order to qualify as “joint authors,” all those making that claim must have made a copyrightable contribution to the work and all joint authors must have intended, prior to or during the creation of the work, that their contributions form an “inseparable and interdependent whole.” Any joint author can authorize the use of the work and any joint author can enforce copyright against an infringer. But the other joint authors are entitled to their proportionate share of licensing revenues or damages awards, respectively.
Limit of Claim – The section in a copyright registration application where the applicant identifies portions of a work that are not new authorship. For example, a nonfiction book containing historic photographs would limit the claim of copyright to exclude those images. Even if the old material was by the same author, for example a screenplay based on a previously written book, that prior work should be disclaimed from the current registration application.
Market Value (fair use) – The fourth Fair Use factor considers whether the use harms the (current) value of the work or potential markets for the work. This may even include a use the copyright owner never thought to make or may even decline to make. For example, just because you decide not to turn your artwork into playing cards, this does not give anyone else the right to do so! A finding of harm to the market for or potential value of the work are generally less likely to be fair use.
Musical Works – The broad term which encompasses all musical compositions, including original lyrics, if lyrics are written. Compositions may be first fixed in traditional notation (sheet music) or, quite often, as sound recordings. The latter produces two protectable works—the underlying musical work and the sound recording.
Opt-out – Under the procedures of the CCB, anyone who is the subject of a claim (the “defendant” or “respondent”) may opt-out of the proceeding. They have a limited time at the start of the process to do this. If they do not opt-out, the proceeding will continue. If they do opt-out, the proceeding cannot continue and you must consider other enforcement tools. Libraries and archives have a special rule that allow them to pre-emptively opt-out of any CCB proceeding, even before a claim is filed against them.
Perform (publicly) – To recite, render, play, dance or act a work, including by means of any device (such as a movie projector or computer). In order to be a “public” performance, it must be shown: 1) at a place open to the public; 2) where a substantial number of people are gathered, beyond the normal circle of a family and its social acquaintances; OR be transmitted to the public (such as online).
Perform (publicly) a sound recording by means of a digital transmission – The U.S. Copyright Act does not provide a full public performance right for sound recordings. For example, AM/FM radio stations pay nothing to the right holders in sound recordings for the broadcast of those sound recordings. Sound recordings DO have a right of public performance is by means of a digital transmission, such as an internet transmission or satellite radio. However, other parts of the law create exceptions to that right and certain types of digital transmissions are authorized by the law, even if not by the copyright owner. There is no exception or limitation like that for interactive transmissions (where the listener can choose exactly the song they want when they want). Individual songs posted online, for example on YouTube, are interactive transmissions. If the public performance of your sound recording was not by means of an interactive digital transmission, you should consult an attorney for further guidance.
Portfolio – RightsClick term for the user’s full catalog.
Project – RightsClick term for the user’s folders of related works, which may comprise one or more Titles and more than one Type of work.
Publication – The Copyright Act defines “publication” in a way that focuses on the distribution of copies of a work. The law is clear that “public performance or display of a work does not of itself constitute publication.” So, while this may be counter-intuitive, posting a work on social media (for people to see or watch, but not for them to obtain a copy to keep) is often NOT publication. According to the definition in the law, the distribution of (or the offer to distribute) copies of a work to the public makes the work published. However, an offer to distribute or actual distribution to a just select group of people and/or for a limited purpose may NOT constitute publication. Courts make that distinction on a case-by-case basis, so you have to make your best good-faith judgement about how broad the distribution of the work was/is. When you apply for copyright registration you must indicate whether the work was published and, if so, when. Published and unpublished works cannot be registered together in a group registration. Further, the date and even the place (if outside the U.S.) may have important consequences for the protection and enforcement of copyright. An offering to distribute or actual distribution of copies by another person may constitute publication, but generally only if that was done with the copyright owner’s permission.
Registration – Registering a work, or works, with the U.S. Copyright Office. Though not required in order for a work to be protected, registration is critical to enforcement efforts. Registration is required for U.S. works before you can initiate litigation in federal court. Further, for all works timely registration (within three months of first publication of the work or prior to the commencement of a particular infringement) avails the copyright owner of the ability to elect statutory damages and request attorney fees. Claims brought before the CCB are subject to less stringent timing requirements for registration, but the case cannot conclude until the registration is issued.
Registration Application – Submission to the Copyright Office for a registration. Includes an application form, a filing fee, and one or more deposit copies of the work being registered, usually in digital file formats.
Registration Number – Upon approval of an application, the Copyright Office assigns this number, along with a certificate, to the work or group of works. The registration is valid for the term of copyright, which is generally the life of the author plus another 70 years. Certificates/numbers are typically issued 3-6 months after the application is submitted, and registration numbers can be searched/viewed online.
Registration Serial Number – Upon receipt of the application, but before issuing the registration, the Copyright Office will assign a serial number used to track the application through the process.
Remedy – Verb or noun, any action that may be taken to resolve an infringement (e.g., stopping the ongoing use and/or payment).
Reproduction – One of the core rights of copyright is the right to authorize reproductions of the work. That is found in Section 106(1) of the Copyright Act. In order to implicate the reproduction right of copyright, a copy must be fixed in a material object long enough for it to be “perceived, reproduced, or otherwise communicated.” Copies that exist for a very short time – around 1 second or less – may not implicate the reproduction right in certain circumstances. Copying very small amounts of a work also may not implicate the reproduction right. In general, courts will consider evidence of how likely it is that a defendant had access to a work and how similar the new work is to the original in order to assess whether the second work was copied from the first.
Resolution – Conclusion of actions seeking to remedy an infringement.
Response – Typically, a reply to a claim. Hence “respondent” is often used as a synonym for “defendant.”
Rightsholder/Copyright Owner – The owner of any of the exclusive rights of copyright in a work. The rightsholder may not be the author; the rightsholder may have purchased or inherited the copyright from the author, or from someone else who obtained it from the author.
Sound recordings – Any audio recording (singing, a lecture, a comedy routine, etc.) on any audio recording medium from vinyl records to mobile phones.
Statutory Damages – A manner of calculating damages awards in which the plaintiff need not offer proof of actual damages; the court selects an award from within a prescribed statutory range. The range is higher if the infringement was willful and possibly lower if the infringement was a good faith mistake. The ranges are higher in federal court than they are before the CCB.
Title – Both at the Copyright Office and in RightsClick, a single work is identified as a Title.
Transformativeness – A use of a copyrighted work that recasts it, adding new meaning or purpose, may be considered “transformative.” A transformative use is very heavily favored in fair use analysis and generally overcomes even commercial uses. This is very much an evolving area of law, but as a general matter. a transformative use should be more than substituting for the original or free-riding on the popularity of the original work. The new use should reflect artistic commentary or a different character and purpose than the original. Some courts have held that using works in a way that offers new functionality, even with little or no added creativity, can also be transformative.
Work(s) – General term for any material that is properly a subject of copyright protection. In the Copyright Act, the term “phonorecords” is used to describe copies of sound recordings. RightsClick uses the terms “copies” and “works” for all subject matter protected under the U.S. Copyright Act.
Work Made for Hire – A legal doctrine that provides the employer who commissions the creation of a work, or in certain cases in which the parties have agreed in writing to consider the work a work made for hire, that the employer/commissioning party is the author of the work (not merely a copyright owner who has obtained rights from the initial author). The Copyright Act provides that a work made for hire will enjoy a term of copyright that lasts 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.