You may have seen some headlines recently announcing that the “deposit requirement” at the U.S. Copyright Office was held to be unconstitutional by the DC Circuit Court of Appeals. Because this announcement could be misunderstood by creators looking to register their work(s) with the Office, we wanted to clarify the nature of this decision, but if you read no further, know this: the outcome in the case Valancourt v. Perlmutter has no bearing on the requirement to provide deposit copies with a registration application. If you intend to register your work—and we strongly urge every creator to do so—this case does not affect that process in any way.
If you want a little more detail, here is an adapted excerpt from RightsClick co-founder David Newhoff’s blog The Illusion of More:
What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408 of the Copyright Act. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States.
Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration, and it is the basis for the court’s finding that the demand amounts to a taking in violation of the Fifth Amendment.
The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.
We know this stuff gets complicated and sounds needlessly confusing—and that’s because it often is needlessly confusing! But that’s why we developed RightsClick to make copyright registration and management way easier.