2021 US Copyright Compendium Series #2: Court Decisions

Last week, this Kat began exploring the most important revisions from the 2021
version of the Compendium of US Copyright Office Practices, Third Edition. The series began with a discussion of the Office's expanded treatment of an otherwise scantly mentioned category of work, works of artistic craftmanship. This post will turn from the revived to the novel, exploring developments to US copyright law through recent precedential court decisions, as implemented by the Office. 

Court Decisions

Although the revival of the works of artistic craftsmanship category certainly reflects a ripple effect from Star Athletica v. Varsity Brands, there are three more recent decisions to which the Office gave particular attention in the latest version of the Compendium. 

Georgia v. Public.Resource.Org

Early last year, the Supreme Court decided the case of Georgia v. Public.Resource.Org, a case concerning the eligibility of the annotated version of the Official Georgia Code for copyright protection. (Katpost Here). In that case, the Court determined that the annotated version of the Code, as produced by a committee which partially consisted of state legislators, was a government edict and thereby exempt from copyright protection.

The Compendium quotes the case to define the "government edicts doctrine", which provides that legislators and judges “empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.” This reflects the principle that no person should have exclusive rights over that which is created by legislators and judges in the course of their duties, as those works are "attributable to the collective authorship of the People."

To reflect that the scope of government edicts spans beyond that which has the force of law, the Compendium now provides the following quote from Public.Resource, 

The government edicts doctrine “applies to whatever work legislators perform in their capacity as legislators. That of course includes final legislation, but it also includes explanatory and procedural materials legislators create in the discharge of their legislative duties.”

Fourth Estate Public Benefit Corporation v. Wallstreet.com

In 2019, the Supreme Court addressed the registration requirement that applies to US works prior to bringing litigation for copyright infringement, in Fourth Estate Public Benefit Corp. v. Wall-street.com. US works must be registered prior to filing a suit for copyright infringement under Section 411 of the Copyright Act.

At issue in Fourth Estate was whether registration was affected when an application for a registration was filed, or when a registration was granted by the Copyright Office. The Supreme Court unanimously decided that registration was affected upon registration, rather than upon application. 

In addition to incorporating this decision in defining the effective date of registration, the Compendium frequently quotes the decision in regard to the preregistration process.

If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement … the owner may apply for preregistration. 

The preregistration allows a copyright claimant to institute a suit for infringement, but, per Fourth Estate, the claimant must thereafter receive a registration or risk dismissal.

Sohm v. Scholastic 

Beyond Supreme Court decisions, the Compendium was also revised in response
to Sohm v. Scholastic, a Second Circuit decision concerning the registration of collective works. 

Sohm, a photographer who employed a service by Corbis to register his photographs for copyright protection and manage licensing the photographs for use, found that Scholastic had exceeded the use of their license. In order to register the works, Sohm temporarily assigned his photographs to Corbis; Corbis then registered the photographs as part of several group registrations in Corbis' name. The registrations did not list Sohm as an author.

Despite this omission, the group works registered by Corbis properly listed the author of the compilations, which was Corbis. Therefore, the group works were properly registered under Section 409 of the Copyright Act; "[b]ecause the registration of an unpublished collection extends to each copyrightable element therein," Sohm's photographs were properly registered by Corbis.

[A] registration for a collective work may cover the constituent elements of that work even if the authors of those elements are not specified in the registration. Compendium 613.10(F)

Although the Compendium now includes a citation to Sohm to reflect this holding, applicants are encouraged to provide the name of each author in the application, where feasible. 

Comment

Not only do these revisions provide for a review of recent decisions in US copyright law, but the revisions reflect the complexities posed by the imposition of formalities as a prerequisite to copyright protection, and the nuance of preserving the public domain through copyright exemptions.

The next instalment in this series will cover Compendium revisions relating to recent statutory developments, including the Music Modernization Act and the implementation of the Marrakesh Treaty, so be sure to keep a Kat-eye out for the next post!