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What are Grounds for Copyright Registration Denial?

By Eric Misterovich

Copyright law protects any creative/artistic work as soon as it is fixed in a tangible medium. As the owner of the creative/artistic work, you own a variety of rights associated with your work, including the exclusive right to distribute, reproduce, perform, display, and prepare derivative works.

Copyright registration exists separately from common law copyright protection as described above. Registration gives you significant advantages should you need to enforce  your rights, including a presumption that your copyright is valid and the ability to seek statutory damages and attorneys’ fees, both of which can be substantial.

Under the US Copyright Act, copyright registration is allowed for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. §102 (a). However, the protection provided by the Copyright Act does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102 (b). Ideas, procedures, and processes, etc., are covered by patent law. The intersection between copyrights and patents can be confusing. 

The Copyright Registration Process

The Copyright Office, which processes copyright applications, is receives its funding from the Library of Congress in Washington, D.C. A copyright application requires a variety of information and  a copy of the work for which you seek registration  While the essence of copyright protection is a simple concept, the procedures governing the application process are complicated.  An experienced copyright attorney will help you obtain registrations in the most efficient manner that fits your needs.

Grounds For Copyright Registration Denial

The Copyright Office lists the following as some grounds for denial:

  • Application deficiencies (incomplete, wrong applicant, applicant not authorized to file, failure to pay fees, etc.)
  • Work is not fixed in a tangible medium of expression
  • Work lacks human authorship
  • Work is not covered by the Copyright Act (might be better suited for patent protection)
  • Work was not independently created (that is, not an original work)
  • Work lacks the minimum level of creative authorship
  • Work is in the public domain
  • Work is older than certain time limitations (for example, architectural works created before 1990 are not eligible for copyright registration)
  • Work is ineligible based on claimant’s nationality or domicile or nation of first publication and/or other international/treaty related bases for ineligibility

A common ground for copyright registration denial is lack of minimal creativity. Well-known and oft-used symbols and shapes (lines, circles, squares, triangles, etc.) are not eligible for copyright protection even in unique combinations. In one case, a logo for a sports team called the “Arrows” was denied registration where the logo consisted of four straight lines that formed an arrow coupled with the word “Arrows.” As an aside, that logo might have been better served by a trademark registration. The team and the designer should have contacted a good trademark lawyer.  Copyright protection, although powerful, is limited in duration while trademark protection may, in theory, exist indefinitely.

What Happens if Your Copyright Application is Denied?

If your application is denied, you can request two rounds of review from within the US Copyright Office. The First Request for Reconsideration must be filed within three months of the original denial. If your application is still denied, then a Second Request for Reconsideration can be filed within three months. If your application is still refused, you can then file a lawsuit with a US District Court under applicable rules and laws governing a “final action” taken by an administrative agency. Among the reasons that a District Court might overturn the US Copyright Office is that the denial of your copyright registration was:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
  • Contrary to constitutional right, power, privilege, or immunity
  • In excess of statutory jurisdiction, authority, etc.
  • Without observance of the required procedures
  • Unsupported by substantial evidence
  • Unwarranted by the facts where the reviewing court is allowed to delve into the facts

It is rare for the courts to overturn the Copyright Office. Courts give substantial deference to the decisions made by the Copyright Office concerning registration of copyrights.

Why Copyright?

As we previously discussed here, copyright registration significantly strengthens your ability to protect your property rights. Registration accomplishes the following:

  • Makes your claim known and public — that is, you are holding out your rights, in public, as “against all the world”
  • Makes your copyright public and searchable providing a sort of “warning” and helping others avoid accidental and innocent infringements
  • Gives “teeth” to a notice of claimed infringement
  • Creates the prerequisite for filing suit to punish and forestall infringement — in some jurisdictions an infringement suit may not be filed unless and until a copyright registration has been obtained
  • In court proceedings, a copyright registration establishes prima facie evidence of the validity of the copyright
  • Allows a court to impose significantly higher statutory penalties and award attorneys’ fees if your registration is filed within three months of publication
  • Allows recordation of the copyright with the US Customs service to help protect against importation of infringing goods and products (this is an extremely efficient and effective tool for businesses combatting an influx of infringing goods manufactured abroad)

How are Copyrights Enforced?

If someone infringes on your copyright, you can sue him or her in federal court asking the court to prevent further infringement via injunctions and award money damages to compensate you for lost sales or lost income.  If lost sales or lost income are difficult to prove and you have a copyright registration, you may seek statutory damages instead, which can be substantial.

Some defenses that might be asserted by the alleged infringer are:

  • The infringement is allowed under the fair use doctrine
  • The infringement was innocent or mistaken (which may mitigate damages)
  • The infringing work was independently created

Contact Revision Legal

Every business needs experienced copyright attorneys like the professionals at Revision Legal. If you are concerned about infringement or have questions about how to protect your creative works through copyright  and other intellectual property laws, we can help. If you have been sued or suit is threatened, we are experienced litigators.

We can be reached by using the form on this page or by calling us at 855-473-8474.


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