Pursuant to the Artists’ Rights and Theft Prevention Act of 2005, copyright owners can now sue for infringement of certain unpublished works that the Copyright Register has deemed to have had a history of pre-distribution infringement. Such works can be “pre-registered” with the U.S. Copyright Office if they meet three conditions:

• Work must be unpublished;
• Work must be in the process of being prepared for commercial distribution in either physical or digital format, e.g., filming on a motion picture must have begun, or some of the code for a computer program must have been fixed; and
• Work must be one of the following types: motion pictures; sound recordings; musical compositions; literary works being prepared for publication in book form; computer programs, including videogames; or advertising or marketing photographs.

Nevertheless, pre-registration is not a substitute for full registration, nor does it guarantee that the Copyright Office will register the work upon submission of an application for registration. Instead, a copyright owner who has pre-registered a work must register it within one month after becoming aware of infringement and no later than three months after the work has been first published. The copyright owner who pre-registers his work subsequently can receive, upon full registration, statutory damages and attorneys’ fees in an infringement action. If the copyright owner fails to fully register his work within this prescribed three-month period, however, a court will dismiss an action for infringement that occurred before or within the first two months after first publication. See 17 U.S.C. §§ 408(f), 411, 412; 37 C.F.R. § 202.16.

To pre-register an unpublished work, a copyright owner need only submit an online application, available at www.copyright.gov/prereg, which includes a certification that the claimant reasonably expects the work to be commercially distributed; and a nonrefundable $100 filing fee. Copyright owners are not required to submit a copy of the work or any portion thereof with the pre-registration application. Rather, applicants must submit only a brief description of their work sufficient to satisfy a court in a subsequent copyright infringement action that the allegedly infringed work is the same as that described in the pre-registration application. Therefore, even though pre-registration records are open to the public pursuant to the Freedom of Information Act, copyright owners should not be deterred from the pre-registration process because no detailed or confidential information is requested as part of the application.

Anthony V. Lupo
202.857.6353
lupo.anthony@arentfox.com

Jennifer L. Myron
202.857.6428
myron.jennifer@arentfox.com