Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Proposed Rules 29257 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 202 

[Docket No. 2012–3] 

Registration of Copyright: Definition of 

Claimant 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Copyright Office 

proposes to amend its regulations 

governing the definition of a ‘‘claimant’’ 

for purposes of copyright registration by 

eliminating the footnote to the 

definition of a ‘‘claimant’’ in 

§ 202.3(a)(3)(ii). The footnote currently 

extends the definition of a claimant to 

include individuals or entities that have 

obtained the contractual right to claim 

legal title to copyright in an application 

for copyright registration. This 

amendment would clarify that the 

copyright claimant must be either the 

author of the work, or a person or 

organization that has obtained 

ownership of all of the exclusive rights 

initially belonging to the author. The 

Copyright Office believes that the 

footnote creates considerable legal 

uncertainty while offering no clear 

benefits to the registration system. 

Removing it will foster the use of other 

available registration options that create 

a more meaningful public record. 

DATES: Written comments are due July 

16, 2012. Reply comments are due 

August 15, 2012. 

ADDRESSES: The Copyright Office 

strongly prefers that comments be 

submitted electronically. A comment 

page containing a comment form is 

posted on the Copyright Office Web site 

at http://www.copyright.gov/docs/ 

claimantfn/. The online form contains 

fields for required information 

including the name and organization of 

the commenter, as applicable, and the 

ability to upload comments as an 

attachment. To meet accessibility 

standards, all comments must be 

uploaded in a single file in either the 

Adobe Portable Document File (PDF) 

format that contains searchable, 

accessible text (not an image); Microsoft 

Word; WordPerfect; Rich Text Format 

(RTF); or ASCII text file format (not a 

scanned document). The maximum file 

size is 6 megabytes (MB). The name of 

the submitter and organization should 

appear on both the form and the face of 

the comments. All comments will be 

posted publicly on the Copyright Office 

Web site exactly as they are received, 

along with names and organizations. If 

electronic submission of comments is 

not feasible, please contact the 

Copyright Office at 202–707–8125 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Robert Kasunic, Deputy General 

Counsel, Copyright Office, GC/I&R, P.O. 

Box 70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Fax: (202) 

707–8366. 

SUPPLEMENTARY INFORMATION: The 

Copyright Act specifies certain 

conditions and requirements for 

copyright registration. See generally, 17 

U.S.C. 408 and 409. Among the 

requirements of section 409 is that an 

application for registration must 

identify the name and address of the 

copyright claimant. The Copyright Act 

does not define the term ‘‘claimant.’’ 

On January 5, 1978, the Copyright 

Office published interim regulations 

that include a definition of copyright 

‘‘claimant’’ for purposes of copyright 

registration. 43 FR 965 (January 5, 1978) 

(hereinafter, ‘‘Interim Regulation’’). 

Section 202.3(a)(3) states: 

For the purposes of this section, a 

copyright claimant is either: 

(i) The author of the work; 

(ii) A person or organization that has 

obtained ownership of all rights under 

the copyright initially belonging to the 

author. 

The Interim Regulation also included a 

footnote at the end of this definition that 

stated: ‘‘This category includes a person 

or organization that has obtained, from 

the author or from an entity that has 

obtained ownership of all rights initially 

belonging to the author, the contractual 

right to claim legal title to the copyright 

in an application for copyright 

registration.’’ 

Unfortunately, neither the Interim 

Regulation nor the Federal Register 

notice announcing it provided an 

explanation for the footnote and one can 

therefore only speculate as to the reason 

it was crafted. Moreover, the right to 

register a work is not one of the section 

106 exclusive rights that would entitle 

a person or entity to be considered an 

owner of a copyright. That said, viewed 

in context, it is at least possible that the 

footnote was designed to accommodate 

registration problems that could occur 

under the new principle of divisibility 

of copyright embraced by the Copyright 

Act of 1976. 

The 1909 Act was silent on the 

divisibility of copyright rights, although 

it used the singular form when 

addressing both ‘‘copyright’’ and 

‘‘copyright proprietor. ’’ See, e.g., 17 

U.S.C. 2, 3, 9, 10, and 11 (1909 Act), 

available at: http://www.copyright.gov/ 

history/1909act-1973.pdf. Courts 

interpreted the bundle of exclusive 

rights under the 1909 Act to be 

indivisible, i.e., individual rights (such 

as the right to copy a work or the right 

to perform a work publicly) could not be 

assigned to different persons or entities. 

See, e.g., Goldwyn Pictures Corp. v. 

Howells Sales Co., 282 F. 9 (2d Cir. 

1922); M. Witmark & Sons v. Pastime 

Amusement Co., 298 F. 470 (E.D.S.C. 

1924); New Fiction Publishing Co. v. 

Star Co., 220 F. 994 (S.D.N.Y. 1915). 

The reality that copyrights could be 

assigned in whole but not in part led to 

a strained and illogical marketplace: An 

author could (and frequently did) 

disaggregate his copyright for the benefit 

of multiple parties if licensing rights on 

a nonexclusive basis, but could not do 

so when assigning or otherwise offering 

his rights on an exclusive basis. 

Moreover, the legitimate rights of 

licensees were often confused or 

inadequate in the context of litigation. 

Former Register of Copyrights Abraham 

Kaminstein highlighted the issue in 

1960 in a Copyright Office Study for the 

Copyright Revision Process: 

Every major bill to revise the copyright law 

first enacted in 1909 has included provisions 

for divisibility as one of the three or four 

crucial issues. For a time, authors believed 

divisibility so vital to their interests that they 

made it their most important legislative goal. 

Kaminstein, Divisibility of Copyrights, 

Copyright Off. Study No. 11 (1960), 

available at: http://www.copyright.gov/ 

history/studies/study11.pdf. 

Indeed, the revised law, the Copyright 

Act of 1976, represented a sea change, 

as the ‘‘first explicit statutory 

recognition of the principle of 

divisibility of copyright in our law.’’ 

Copyright Law Revision, H.R. Rep. 94– 

1476 at 123 (1976). Under section 

201(d)(1) of the 1976 Act, Congress 

specified that ‘‘copyright ownership 

may be transferred in whole or in part 

by any means of conveyance or by 

operation of law, and may be 

bequeathed by will or pass as personal 

property by the applicable laws of 

intestate succession.’’ 17 U.S.C. 

201(d)(1) In subsection 201(d)(2), 

Congress further stated that ‘‘[a]ny of the 

exclusive rights comprised in a 

copyright, including any subdivision of 

any of the rights specified in section 

106, may be transferred as provided by 

clause (1) and owned separately. The 

owner of any exclusive right is entitled, 

to the extent of that right, to all of the 

protection and remedies afforded to the 

copyright owner by this title.’’ 17 U.S.C. 

201(d)(2). See also, 17 U.S.C. 101 

‘‘copyright owner’’ (‘‘Copyright owner, 

with respect to any one of the exclusive 


srobinson on DSK4SPTVN1PROD with PROPOSALS
29258 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Proposed Rules 

1Where the owner of an exclusive right submits 

a claim listing the author as author and claimant, 

the owner of the exclusive right would list himself 

or herself (or his or her agent) as the correspondent 

or person certifying the application. See, 37 CFR 

202.1(c)(2)(i). Moreover, to provide a public record 

of the transfer of one or more exclusive rights from 

the author/claimant to the transferee, the owner of 

the exclusive right could record the document 

transferring rights with the Copyright Office. See, 

17 U.S.C. 205. 

2 ‘‘(3) For the purposes of this section, a copyright 

claimant is either: 

(i) The author of a work; 

(ii) A person or organization that has obtained 

ownership of all rights under the copyright initially 

belonging to the author.’’ 

(Emphasis in original; footnote omitted.) 

3 In discussions with former Copyright Office staff 

members involved in the rulemaking that led to the 

Interim Regulations, the Office has heard two 

theories as to why the footnote was included: To 

address issues involving publishers of periodicals 

who wished to register claims in the periodical as 

well as the articles included in the periodical, and/ 

or to address issues involving registration of 

musical compositions for which nonexclusive 

rights had been granted to performing rights 

organizations. The Office has found no evidence to 

support these theories, but welcomes comments 

from the public that may shed light on the reasons 

for the inclusion of the footnote. 

4 17 U.S.C. 101 (definition of ‘‘copyright owner’’: 

‘‘Copyright owner, with respect to any one of the 

rights comprised in a copyright, refers to 

the owner of that particular right’’) and 

‘‘transfer of copyright ownership’’ (‘‘A 

‘‘transfer of copyright ownership’’ is an 

assignment, mortgage, exclusive license, 

or any other conveyance, alienation, or 

hypothecation of a copyright or of any 

of the exclusive rights comprised in a 

copyright, whether or not it is limited in 

time or place of effect, but not including 

a nonexclusive license’’). 

Implementing the principle of 

divisibility into the registration system 

of the Copyright Office presented its 

own set of challenges, both conceptual 

and practical. For example, should an 

owner of an individual right be entitled 

individually to register a claims to that 

particular right? How many registrations 

should be available for any particular 

work? See, Notice of Inquiry on 

Applications for Registration of Claim of 

Copyright under Revised Copyright Act, 

42 FR 48944 (September 26, 1977) 

(raising these and other questions). 

The 1978 interim regulations resolved 

many of these questions. They 

established a general rule that there 

should be only one registration per work 

and that the transfer of ownership of 

exclusive rights could be adequately 

addressed through the Office’s 

recordation system. Interim Regulation, 

43 FR 965 (January 5, 1978). However, 

neither the 1977 Notice nor the Interim 

Regulation explained the inclusion of 

the footnote. In fact, the Interim 

Regulation acknowledged that a 

claimant should be defined narrowly: 

Prompted by the implications of that 

Notice, several comments, including a 

persuasive practical and legal analysis 

prepared by the Authors League of America, 

Inc. strongly urged that the copyright 

‘‘claimant’’ to be identified in an application 

and registration under section 409(c) of the 

Act not be equated with the owner of one or 

more, but less than all, of the rights under a 

copyright. We agree with the view expressed 

in these comments; we do not believe that 

the concept of ‘‘divisibility of copyright’’ was 

intended to allow the owner of an individual 

right or rights to claim, or appear to claim, 

on our records, ownership of the entire 

copyright. As pointed out in the comments, 

such a result would lead to a misleading and 

inaccurate public record, and subvert the 

purpose of the registration system. 

Accordingly, interim § 202.3(a)(3) makes 

clear that the copyright ‘‘claimant’’ for 

purposes of copyright registration is the 

author of the work for which registration is 

sought, or a person or organization that has 

obtained all rights under the copyright 

initially belonging to the author. 

Id. 

The contradiction between the above 

passage and the footnote is difficult to 

explain. Conceivably, there was concern 

that when an author possessing the 

initial unified bundle of rights fails to 

register a work before transferring 

ownership in one or more of those 

exclusive rights (or a subpart of an 

exclusive right), it might appear that a 

proper claimant could not exist—the 

author, having divested his or her 

interest in an exclusive right would no 

longer own all rights, and the owner of 

a single exclusive right would not be 

eligible to be a claimant under the 

regulatory definition. However, this 

view is incorrect, because an author 

may always be named as a proper 

claimant in a work, even when an 

author no longer owns all of the 

exclusive rights in a copyright. This is 

true even if an author transfers all rights 

in a work, because an author may 

always have a reversionary or beneficial 

interest in the work. See e.g., 17 U.S.C. 

304(c) and 203. Where an author 

transfers an exclusive right, either the 

author or the owner of an exclusive 

right may submit an application for 

registration listing the author as both the 

author and the claimant in the work.1

See 37 CFR 202.1(a)(3).2 Once a work 

listing the author and a proper claimant 

is registered, the work as a whole is 

registered, including all of the divisible 

exclusive rights (and subparts therein) 

previously or later transferred. 

Regardless of when the disaggregation of 

the exclusive rights occurs—either 

before or after registration—the author 

may always be listed as a proper 

copyright claimant in an application for 

registration.3 After registration for the 

work has occurred, any document 

relating to that registered work, such as 

a transfer of an exclusive right, may be 

recorded with the Copyright Office. 

Thus, the existence of the footnote 

cannot be justified by reference to cases 

where the original author no longer 

owns all (or any) of the rights in the 

work. However, the footnote may have 

been rooted in another, more 

complicated situation faced by the 

authors of collective works. Where an 

author of a contribution to a collective 

work assigns one (or perhaps a few) of 

the exclusive rights to the publisher of 

a collective work, such as an article 

contributed to a serial issue, how could 

the collective work author register its 

copyright interest in the contribution? If 

the publisher registers the collective 

work, the registration could cover the 

selection and arrangement of the 

articles, along with the articles authored 

by the collective work author, and those 

works for which the collective work 

author owns all of the exclusive rights. 

But the registration would not extend to 

those works contained in the collective 

work for which the collective work 

author owns less than all rights. See, 

e.g., Morris v. Business Concepts, Inc., 

259 F.3d 65, 70 (2d Cir. N.Y. 2001). As 

the Second Circuit makes clear in 

Morris, the fact that a registration of a 

collective work does not cover every 

work contained in that collective work 

in no way precludes protection for, or 

registration of, a component work for 

which all rights were not transferred. 

Either the author of the component 

work or the collective work author, 

filing on behalf of the author/claimant, 

would simply be required to register 

such component works in a separate 

registration. Id., at 71–72. 

Although separate registration is 

available for unregistered contributions 

to works for which less than all rights 

have been transferred, the collective 

work author would likely find it 

preferable to submit one application to 

cover every unregistered work 

contained in the collective work. Under 

the rule stated in the footnote, collective 

work authors may accomplish this if 

they received the contractual right to 

claim legal title for purposes of 

registration. 

The principal problem with this 

approach is that it would seem to allow 

a person or entity to claim title for 

purposes of copyright registration even 

if such a person or entity was not in fact 

the owner of any exclusive rights. While 

an argument could be made that the 

1976 Act allows the owner of an 

exclusive right to claim the copyright as 

a copyright owner,4 there is no clear 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Proposed Rules 29259 

exclusive rights comprised in a copyright, refers to 

the owner of that particular right’’). However, the 

concept of a copyright ‘‘owner’’ need not be 

congruent with the concept of a copyright 

registration ‘‘claimant.’’ As explained supra, if an 

owner of an exclusive right could register a work, 

there would either be multiple registrations for 

particular works, thus violating the general rule of 

only one registration per work, or one registration 

by the first owner to register, thus leading to a 

misleading and inaccurate public record. 

5That provision may also be interpreted to 

distinguish an owner of an exclusive right from a 

‘‘copyright owner’’ in the broader sense of the 

owner of all rights. 

6Righthaven LLC v. Mostofi, 2011 U.S. Dist. 

LEXIS 75810 (D. Nev. July 13, 2011). See also, 

Silvers v. Sony Pictures Entertainment, Inc., 402 

F.3d 881 (9th Cir. 2005), cert. den’d 546 U.S. 827 

(2005) (The right to sue for an accrued claim for 

infringement is not an exclusive right under 17 

U.S.C.S. 106. Moreover, the bare assignment of an 

accrued cause of action is impermissible under 17 

U.S.C.S. 501(b).) 

7Righthaven LLC v. Mostofi, 2011 U.S. Dist. 

LEXIS 75810 (D. Nev. July 13, 2011), quoting, 

Silvers v. Sony Pictures Entertainment, Inc., 402 

F.3d 881 (9th Cir. 2005), quoting, 4 Business and 

Commercial Litigation in Federal Courts, at 1062 

§ 65.3(a)(4) (Robert Haig ed.). Accord, Righthaven 

LLC v. Inform Techs., Inc., 2011 U.S. Dist. LEXIS 

119379 (D. Nev. Oct. 14, 2011). 

foundation in the statutory language for 

allowing a person or organization with 

less than a copyright ownership interest 

in an exclusive right to be considered a 

owner of copyright or a valid claimant 

of a claim to copyright. The bald right 

to register a work is not one of the 

section 106 exclusive rights. Only the 

owner of an exclusive right (or 

subdivision thereof) is entitled, to the 

extent of that right, to all of the 

protection and remedies accorded to the 

copyright owner by title 17. See, 17 

U.S.C. 201(d)(2).5

The above discussion poses more than 

a theoretical problem. While the Office 

recognizes that transfers may be limited 

in time and duration, see, Bean v. Littell, 

669 F. Supp.2d 1031 (D. Ariz. 2008), 

recent court decisions have questioned 

what it means to claim legal title to 

copyright when in fact the ‘‘claimant’’ 

does not in fact own any section 106 

rights or may technically own those 

rights, but does not have the ability to 

exercise any of the exclusive rights.6 At 

least one court has held that the 

standing to sue for copyright 

infringement is absent when underlying 

agreements distort or misrepresent such 

claimants’ interests in and to the 

ownership of exclusive rights. ‘‘If the 

plaintiff is not a proper owner of the 

copyright rights, then it cannot invoke 

copyright protection stemming from the 

exclusive rights belonging to the owner, 

including infringement of the 

copyright.’’ 7 While the Copyright Office 

does not believe that all transfers relying 

on the footnote necessarily misrepresent 

who is a valid copyright claimant, there 

exists the real possibility that the 

footnote fosters questionable claims of 

ownership due to its ambiguous 

language. 

The elimination of the footnote would 

leave numerous options for registering 

works to authors and copyright owners, 

including the owners of a single 

exclusive right. As noted above, the 

owner of an exclusive right may always 

register a claim in the work by listing 

the author as the claimant. Any 

authorized agent of the author, the 

owner of all rights, or the owner of an 

exclusive may similarly file an 

application for registration on behalf of 

a valid claimant by filling out the 

application and certifying their 

relationship to the claimant. 

In the case of collective works, the 

author of articles contributed to a 

number of periodicals may avail himself 

or herself to the group registration 

option for contributions to periodicals 

established pursuant to section 408(d) of 

the Copyright Act. See, 37 CFR 

202.3(b)(8). A number of other group 

registration options exist for other types 

of works, such as for unpublished 

collections and for published 

photographs. See, 37 CFR 202.3(a)(4) 

and 202.3(b)(10). 

In light of the concerns raised about 

the footnote and the alternative 

registration options available to 

claimants, the owners of one or more 

exclusive rights, and agents of such 

persons or entities, the Office believes 

that elimination of the footnote is 

warranted. The Office believes that the 

elimination of the footnote would have 

no discernable adverse effect on the 

ability to register works, would foster a 

more accurate and meaningful record of 

authorship and ownership, and would 

reduce the possibility of fraudulent or 

misleading claims. Removal of the 

footnote would also reduce the 

occurrence of litigation over the validity 

of misleading transfers by creating a 

bright line rule, consistent with the 

rationale expressed for the original 

Interim Regulation, for determining who 

may assert a claim of copyright. The 

Copyright Office seeks public comment 

on this intended amendment to the 

definition of a ‘‘claimant.’’ 

List of Subjects in 37 CFR Part 202 

Copyright, Registration. 

Proposed Regulation 

In consideration of the foregoing, the 

Copyright Office proposes to amend part 

202.3(a)(3) as follows: 

PART 202—PREREGISTRATION AND 

REGISTRATION OF CLAIMS TO 

COPYRIGHT 

1. The authority citation for part 202 

is revised to read as follows: 

Authority: 17 U.S.C. 408, 409, 702. 

2. Amend sec. 202.3 paragraph 

(a)(3)(ii) as follows: 

a. In paragraph (ii), remove footnote 1. 

Dated: May 10, 2012. 

Maria A. Pallante, 

Register of Copyrights. 

[FR Doc. 2012–11879 Filed 5–16–12; 8:45 am] 

BILLING CODE 1410–30–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 385 

[Docket No. 2011–3 CRB Phonorecords II] 

Adjustment of Determination of 

Compulsory License Rates for 

Mechanical and Digital Phonorecords 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Proposed rule. 

SUMMARY: The Copyright Royalty Judges 

are publishing for comment proposed 

regulations that set the rates and terms 

for the section 115 statutory license for 

the use of musical works in physical 

phonorecord deliveries, permanent 

digital downloads, ringtones, interactive 

streaming, limited downloads, limited 

offerings, mixed service bundles, music 

bundles, paid locker services and 

purchased content locker services. 

DATES: Comments and objections, if any, 

are due no later than June 18, 2012. 

ADDRESSES: Comments and objections 

may be sent electronically to 

crb@loc.gov. In the alternative, send an 

original, five copies, and an electronic 

copy on a CD either by mail or hand 

delivery. Please do not use multiple 

means for transmission. Comments and 

objections may not be delivered by an 

overnight delivery service other than the 

U.S. Postal Service Express Mail. If by 

mail (including overnight delivery), 

comments and objections must be 

addressed to: Copyright Royalty Board, 

P.O. Box 70977, Washington, DC 20024– 

0977. If hand delivered by a private 

party, comments and objections must be 

brought between 8:30 a.m. and 5 p.m. to 

the Copyright Office Public Information 

Office, Library of Congress, James 

Madison Memorial Building, Room LM– 

401, 101 Independence Avenue SE., 

Washington, DC 20559–6000. If 

delivered by a commercial courier, 


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