Chapter 1700 : 3 12/22/2014

COMPENDIUM: Chapter 1700

Administrative Appeals

1701 What This Chapter Covers

This Chapter discusses the process for appealing a refusal to register a copyright claim within the U.S. Copyright Office.

1702 Registration Refused After Examination

The U.S. Copyright Office does not register all claims to copyright. The Office may refuse to register claims that do not meet the statutory requirements for copyright registration, including on the following grounds:

• The applicant failed to submit a complete application, complete filing fee, and/or complete deposit copy(ies).
• The work is not fixed in a tangible medium of expression.
• The work lacks human authorship.
• The applicant asserts a claim to copyright in a work that is not covered by U.S. copyright law. See 17 U.S.C. §§ 102, 103.
• The work was not independently created.
• The work lacks the minimum level of creative authorship to support a copyright claim.
• The work is in the public domain.
• The work is a sound recording that was fixed before February 15, 1972 (i.e., the date on which sound recordings became eligible for federal copyright protection).
• The work is an architectural work created before December 1, 1990 (i.e., the date on which architectural works became eligible for federal copyright protection), or the application to register the architectural work does not otherwise meet the requirements set forth in Copyright Office regulations. See 37 C.F.R. § 202.11.
• The work is ineligible for copyright protection in the United States based on the author’s citizenship or domicile, based on the nation of first publication, or any other factor set forth in Section 104 of the Copyright Act.
• The applicant is not authorized to register a claim in the work.
• The claimant named in the application is not a proper copyright claimant.

If the Office determines that the work does not constitute copyrightable subject matter or that the other formal and legal requirements have not been met, the Office will refuse to register the claim. The registration specialist assigned to the application will notify the applicant in writing and will explain the reasons for the Office’s decision. See 17 U.S.C. § 410(b). The Office will send the notification to the correspondent listed in the Correspondent section of the application.

1703 First Request for Reconsideration

1703.1 Filing the Request

If the applicant disagrees with a refusal to register the entire work or a refusal to register a specific element of the work, the applicant may appeal that decision within the U.S. Copyright Office. This is an administrative procedure known as a first request for reconsideration.

A request for reconsideration must be in writing. The request should specify the reasons that the applicant believes that registration was improperly refused, including any legal arguments or supplementary information that support the applicant’s position. 37 C.F.R. § 202.5(b)(1). The filing fee set forth in 37 C.F.R. § 201.3(d)(4)(i) must accompany the request, and the Office must receive the request within three months of the date set forth in the refusal. See Sections 1708.1 and 1708.3.

The applicant must provide the following information in the subject line on the first page of the request:

• A statement that the document is a “FIRST RECONSIDERATION.”
• The ten digit case number/service request number that the Office assigned to the claim and the seven digit correspondence ID number that appears in the subject line of the letter refusing to register the work.
• The name of the copyright claimant(s) specified in the application and the title(s) of the work exactly as it appears in the application.

The pages of the first request should be numbered, including any attachments or exhibits thereto. The applicant should send one copy of the request to the address specified in Section 1708.2, together with one copy of the reply sheet that was attached to the refusal to register.

See generally 37 C.F.R. § 202.5(b)(1)-(3) (setting forth the procedure for submitting a first request for reconsideration).

1703.2 Review of the First Request for Reconsideration

The first request for reconsideration will be reviewed by a U.S. Copyright Office staff attorney in the Registration Program office who did not participate in the initial examination of the claim. The Office will base its decision on the applicant’s submission and the administrative record. If the Office needs additional information in order to Chapter 1700: 5 12/22/2014 make its decision, the staff attorney will notify the applicant in writing. The Office will not hear oral argument in support of a first request for reconsideration.

The refusal to register is subject to de novo review, which means that the Office will take a fresh look at whether the work meets the statutory requirements for copyright registration.

If the Office decides to register the work, it will notify the applicant in writing. This notification will be sent to the individual who submitted the first request for reconsideration, rather than the correspondent listed in the application. A certificate of registration will be sent separately to the mailing address specified in the application. See Chapter 600, Section 622.4.

If the Office upholds the refusal to register, it will notify the applicant in writing and will explain the reasons for its decision. This notification will be sent to the individual who submitted the first request for reconsideration.

The Office will respond to the first request within four months after the date that the first request was received. If the deadline falls on a weekend or a federal holiday, the deadline will be extended to the next federal work day. In no case shall a failure to respond within four months after the date that the first request was received result in the registration of the applicant’s work.

See generally 37 C.F.R. § 202.5(b)(4) (discussing the procedure for reviewing a first request for reconsideration).

1704 Second Request for Reconsideration

1704.1 Filing the Second Request for Reconsideration

If the U.S. Copyright Office refuses to register a work after reviewing a first request for reconsideration, the applicant may submit a second request for reconsideration.

A second request for reconsideration must in writing. The request should specify the reasons that the applicant believes that registration was improperly refused, including any legal arguments or supplementary information that support the applicant’s position. The applicant must specifically address the Office’s reasons for upholding the refusal to register following the applicant’s first request for reconsideration. See 37 C.F.R. § 202.5(c)(1). The filing fee set forth in 37 C.F.R. § 201.3(d)(4)(ii) must accompany the second request, and the Office must receive the second request within three months of the date set forth in the Office’s response to the first request for reconsideration. See Sections 1708.1 and 1708.3.

The applicant must provide the following information in the subject line on the first page of the request:

• A statement that the document is a “SECOND RECONSIDERATION.”
• The ten digit case number/service request number that the Office assigned to the claim and the seven digit correspondence ID number that appears in the subject line of the Office’s response to the applicant’s first request for reconsideration.
• The name of the copyright claimant(s) specified in the application and the title(s) of the work exactly as it appears in the application.

The pages of the second request should be numbered as well as any attachments or exhibits thereto. The applicant should send one copy of the request to the address specified in Section 1708.2, together with a copy of the reply sheet that was attached to the Office’s response to the applicant’s first request for reconsideration.

See generally 37 C.F.R. § 202.5(c)(1)-(3) (setting forth the procedure for submitting a second request for reconsideration).

1704.2 Review of the Second Request for Reconsideration

The second appeal will be reviewed by the Review Board. The Review Board consists of the Register of Copyrights and the General Counsel of the U.S. Copyright Office (or their respective designees) and a third individual designated by the Register. 37 C.F.R. § 202.5(f).

The Review Board will base its decision on the applicant’s written submission and the administrative record. Specifically, the Board will consider the arguments and evidence set forth in the applicant’s second request for reconsideration, as well as the application and the deposit copy(ies). In addition, the Board may consider any prior correspondence between the applicant and the Office, or may take administrative notice of matters of general knowledge or matters known to the Office or the Review Board. If the Board needs additional information to review the second request, it will notify the applicant in writing. The Review Board will not hear oral argument on a second request for reconsideration.

Both the decision made by the registration specialist and the decision to uphold the refusal to register following the applicant’s first request for reconsideration are subject to de novo review, which means that the Board will take a fresh look at whether the work meets the statutory requirements for copyright registration.

A majority of the Review Board’s members must agree to uphold or reverse a refusal to register. A decision issued by the Review Board has no precedential value, nor is any decision binding upon the Board in any other appeal.

If the Review Board decides to register the applicant’s work, it will notify the applicant in writing. This notification will be sent to the individual who submitted the second request for reconsideration, and the certificate of registration will be sent separately to the mailing address specified in the application. See Chapter 600, Section 622.4.

If the Review Board decides to uphold the refusal to register, it will notify the applicant in writing and will explain the reasons for its decision. This notification will be sent to the individual who submitted the second request for reconsideration. If the Review Board has been notified that the work is involved in litigation, the Review Board will send a copy of its decision to counsel of record for the parties in that dispute.

See generally 37 C.F.R. § 202.5(c)(4) (discussing the procedure for reviewing a second request for reconsideration).

1705 Effective Date of Registration

If the U.S. Copyright Office registers a work following a first or second request for reconsideration, the Office will assign an effective date of registration (“EDR”) to the registration. The effective date of registration is the day on which the Office receives an acceptable application, deposit copy(ies), and filing fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration. 17 U.S.C. § 410(d).

As a general rule, if the applicant made a reasonable, good faith effort to complete the relevant fields/spaces in the application, the effective date of registration is the date that the Office received the application, provided that the applicant submitted the appropriate deposit copy(ies) and paid the applicable filing fee as of that date. See Chapter 600, Section 625.

1706 Final Agency Action

A decision issued by the Review Board in response to a second request for reconsideration constitutes the final agency action with respect to the issues addressed therein. 37 C.F.R. § 202.5(g).

If the U.S. Copyright Office upholds the refusal to register following a request for reconsideration, an applicant may appeal that decision under the Administrative Procedure Act (“APA”) by instituting a judicial action against the Register of Copyrights in federal district court. See 5 U.S.C. § 500 et seq.

An applicant does not need to appeal a refusal to register under the APA in order to institute an infringement action in federal district court. See 17 U.S.C. § 411(a). However, the applicant must serve a copy of the infringement complaint on the Register, and “[t]he 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 appearance within sixty days after such service ….” Id.

1707 Retention of Records

The U.S. Copyright Office maintains records of all documents and correspondence relating to a first or second request for reconsideration.

1708 General Requirements for First and Second Requests for Reconsideration

1708.1 Filing Fee

The applicant must submit the appropriate filing fee together with both the first or the second request for reconsideration. See 37 C.F.R. § 202.5(b)(2), (c)(2). The current filing fees are set forth in the U.S. Copyright Office’s fee schedule in the field marked “Requests for reconsideration” (www.copyright.gov/docs/fees.html).

The applicant must pay a separate filing fee for each claim that has been refused registration, even if the Office refused to register two or more claims in the same letter. See Copyright Office Fees, 78 Fed. Reg. 18,742, 18,745 (Mar. 28, 2012).

1708.2 Address for Delivery

Each request for reconsideration (including requests that are delivered by mail, by courier, or by hand) should be addressed on the outside of the envelope as follows:

FIRST or SECOND REQUEST FOR RECONSIDERATION U.S. Copyright Office RAC Division P.O. Box 71380 Washington, DC 20024–1380.

For instructions on delivering a request for reconsideration to the U.S. Copyright Office by hand or by courier, see 37 C.F.R. § 202.5(d).

1708.3 Deadline for Submitting a Request for Reconsideration

A first request for reconsideration must be received in the U.S. Copyright Office no later than three months from the date that appears in the written notice from the Office of its decision to refuse registration. 37 C.F.R. § 202.5(b)(3).

A second request for reconsideration must be received in the Office no later than three months from the date that appears in the written notice from the Office of its decision to uphold the refusal to register following the applicant’s first request for reconsideration. 37 C.F.R. § 202.5(c)(3).

The Office will not consider a second request for reconsideration if the applicant failed to submit the first request in a timely manner.

If the deadline for submitting a first or second request falls on a weekend or a federal holiday, the deadline will be extended until the next federal work day. See 37 C.F.R. § 202.5(b)(3), (c)(3). If a request for reconsideration was sent in a timely manner, but arrived in the Office after the relevant deadline, the Office may apply the regulation on postal disruptions to determine the timeliness of the filing. See 37 C.F.R. § 201.8.

The deadline for submitting a first or second request may be suspended or waived, in whole or in part, by the Register of Copyrights upon a showing of good cause. The request for a suspension or waiver should be made in writing, it should indicate Chapter 1700: 9 12/22/2014 whether the request involves a “FIRST” or “SECOND” request for reconsideration, and it should be sent to the address specified in Section 1708.2. A suspension or waiver may be granted only with respect to a specific request for reconsideration, and shall not be considered in connection with any other request from that applicant or any other applicant. See 37 C.F.R. § 202.5(e).

1708.4 Withdrawing a Request for Reconsideration

An applicant may submit a request to withdraw a first or second request for reconsideration at any time before the U.S. Copyright Office has issued its decision. The request should be made in writing, it should indicate whether the requested withdrawal involves a “FIRST” or “SECOND” request, and it should be sent to the address specified in Section 1708.2. The decision whether to approve or deny the request will be made at the discretion of the Office. The filing fee will not be refunded and the Office will not reinstate a request for reconsideration once it has been withdrawn.

1708.5 No Expedited Review

Special handling is a procedure for expediting the examination of an application to register a claim to copyright or the recordation of a transfer or other document pertaining to copyright. The U.S. Copyright Office offers this service in certain circumstances where a copyright owner or other interested parties have a compelling reason for the expedited issuance of a certificate. As discussed in Chapter 600, Section 623.2, the Office will not grant a request for special handling in connection with a first or second request for reconsideration.

1708.6 No Adverse Proceedings

The U.S. Copyright Office does not invite, and generally does not consider, arguments or evidence submitted by or on behalf of any party other than the applicant or the applicant’s duly authorized agent.