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Responding to Copyright Office Refusals

Although copyright registration is “not a condition of copyright protection” (17 U.S.C.A. § 408), it provides significant advantages to the copyright holder. A registration creates a public record of a copyright claim and comes with additional statutory benefits, including establishing prima facie evidence of copyright validity and allowing the recovery of statutory damages and attorneys’ fees for infringement. Critically, copyright registration (or refusal) is necessary before an action for infringement may be filed in court.

When the Register of Copyrights refuses to register a copyright, the applicant will receive a notification in writing outlining the reasons for refusal. In the event the disappointed applicant disagrees with the Register’s refusal, there are a few avenues to pursue.

  1. Request Reconsideration. The Copyright Office provides an internal formal appeal process. Within three months of the date of the refusal (and for an additional fee), the applicant may file a written “First Request for Reconsideration” with additional legal arguments or supplementary information that support the applicant’s position. A Copyright Office staff attorney who did not participate in the initial examination of the claim will then review the First Request for Reconsideration and – within four months – issue a response either registering the work or upholding the refusal. If the refusal is upheld, within three months, the applicant may again pay an additional fee and file a further “Second Request for Reconsideration” to be reviewed by the Copyright Office’s Review Board.
  2. File Suit Under the APA. A decision issued by the Review Board in response to a Second Request for Reconsideration constitutes the final agency action, meaning the applicant may subsequently appeal that decision under the Administrative Procedure Act (“APA”). Within 60 days of the Review Board’s refusal, the applicant may institute an action against the Register of Copyrights in federal district court to compel registration. However, the court’s review of the Copyright Office’s decision is under the deferential, “abuse of discretion” standard, thus affording the Office’s decision substantial weight.
  3. File Suit Under Section 411(a) of the Copyright Act. In the alternative, the applicant can simply accept the Copyright Office’s initial refusal and forego any appeal(s). If the Register refuses registration for any reason other than the failure of the application, deposit, and fee to be received in proper form, the applicant may still bring a subsequent infringement action under (17 U.S.C.A. § 408). In infringement cases, the court will give the Copyright Office’s decision only “some deference” and generally “only to the extent that those interpretations have the power to persuade.” However, where refused copyrights are at issue, the claimant must also provide notice and a copy of the complaint to the Register of Copyrights to allow it to intervene.

Ultimately, the choice between appealing a refusal to register or waiting to institute an infringement action depends on the specific circumstances and the applicant’s goals. Seeking legal advice and thoroughly understanding the implications of each option can help guide the decision-making process.

Category: Copyrights, Intellectual Property