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illustrations including prints or labels used for articles of merchandise.'
Sec. 3. That commencing July 1, 1940, the Register of Copyrights is charged with the registration of claims to copyright properly presented, in all prints and labels published in connection with the sale or advertisement of articles of merchandise, including all claims to copyright in prints and labels pending in the Patent Office and uncleared at the close of business June 30, 1940. All such pending applications and all fees which have been submitted or paid to or into the Patent Office for such pending applications, and all funds deposited and at the close of business June 30, 1940, held in the Patent Office to be applied to Copyright business in that Office, shall be returned by the Commissioner of Patents to the applicants. There shall be paid for registering a claim of copyright in any such print or label not a trade mark $6, which sum shall cover the expense of furnishing a certificate of such registration, under the seal of the Copyright Office, to the claimant of copyright.
Sec. 4. Subsisting copyrights originally registered in the Patent Office prior to July 1, 1940, under the provision of law repealed by section 1 hereof, shall be subject to renewal in behalf of the proprietor upon application made to the Register of Copyrights within one year prior to the expiration of the original term of twenty-eight years."
In a circular issued by the Copyright Office under date of March 18, 1941 (designated Circular No. 46), prints and labels are thus defined:
1. The term "print" as used in the said Act, may be defined as an artistic work with or without accompanying text matter, published in a periodical or separately, used in connection with the sale or advertisement of an article or articles of merchandise. A single sheet containing pictures of various articles of merchandise would be registrable as a print, even though folded one or more times.
2. The term “label” may be defined as an artistic and/or literary work, impressed or stamped directly upon the article of merchandise or upon a piece of paper or other material to be attached in any manner to articles of merchandise or to bottles, boxes or other containers thereof, to indicate the nature of the goods.
It will be seen that the Copyright Office has adopted substantially the old definitions of the Patent Office, but with important deviations. Thus, for example, a label may now be registered
even though the artistic features may be negligible, provided the literary content is such as would bring it within the "book". category, were it not used on a label. Again, the clause "to indicate the nature of the goods" in definition 2, is designed to permit registration on one application and fee of a plurality of labels identical in all respects except as to the names of the various products for which they are used. The old "rule of description" is modified to this extent.
The “single sheet” criterion, with respect to prints, follows the former practice of the Patent Office. If the advertisement is printed on several sheets published in the form of a pamphlet, booklet or catalog, the registration should be applied for in the category of "book” at the normal fee of $2. The distinction may seem somewhat arbitrary but is not unreasonable in view of the necessity of drawing the line somewhere for the purposes of administration.
Prior to filing the application for registration, the print or label must be originally published with notice of copyright claim inscribed upon the copies. The date of publication is defined in section 62 of the Copyright Act as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the copyright proprietor or under his authority".
Notice of Copyright Claim
The form of the notice, governed by section 18 of the Copyright Act, may consist of the word "Copyright" or the abbreviation "Copr." accompanied in either case by the name of the copyright proprietor. However, the incorporation of commercial prints and labels in section 5 (k) of the general Copyright Act entitles such material to carry the symbol © in lieu of the above, accompanied by the name of the copyright proprietor, or merely by his initials, provided his name appears on some accessible place. The year date of publication is permissible but not essential in the notice. The law requires that "such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor” (section 9).
Deposit of Copies
The Patent Office for many years required the deposit of ten copies of the print or label, but later reduced the number to five. The Copyright Office requires the deposit of only two copies, in accordance with section 12 of the general Act. If such copies are bulky or metallic, an additional copy in the form of a photographic reduction is required for insertion in the specimen books which the Office continues to maintain for convenient inspection on the part of the public. Where such material is of a bulky character the Register should have been given discretion to accept for deposit miniature or photographic copies in lieu of the originals, but as the law now stands there seems to be no alternative but to require deposit of “two complete copies of the best edition thereof then published", as called for in section 12.
Such deposits are “open to public inspection” (section 58), and a duplicate certificate of registration can be supplied to any member of the public upon payment of the statutory fee of $1; also a photostatic copy of the original application, for a like fee. But the Copyright Office does not undertake to furnish copies of the work itself unless the request is made by or under authority of the copyright proprietor, herein departing from the former practice of the Patent Office. In this respect the Register is governed by section 1 of the general Act which grants to the copyright proprietor the exclusive right “to copy” the copyrighted work.
One important feature of the old Act is retained, namely, the registration fee of $6 for "any such print or label not a trade mark". In Ex parte Moodie, 28 O.G. 1271, 1884 C.D. 35, the reason advanced for the increase over the normal fee for registration of copyright was “the need of some additional labor, which can be no other than an investigation of the alleged label or print to see whether it does not in fact amount only to the subject matter of a trade mark."
The Attorney General has ruled that material which might be termed "a contribution to a periodical", but is also in fact a print published therein for the purpose of advertising merchandise, is subject to a registration fee of $6, the same as if it had been published in the first instance as a separate leaflet. 46 USPQ 572 (1940).
The Attorney General has also expressed the opinion that “the Register of Copyrights shall collect a renewal fee of $6 in cases involving commercial prints and labels subject to registration under the Act of July 31, 1939". 46 USPQ 294 (1940).
Articles of Merchandise
By section 3 the, Register of Copyrights is charged with the duty of registering “all prints and labels published in connection with the sale or advertisement of articles of merchandise.” Note the use of the term "articles of merchandise" in lieu of "articles of manufacture" as in the old law, thus giving statutory authority for including in this class prints and labels used for articles in their natural state involving no process of manufacture, such as eggs, cranges, etc. On the other hand, a print or label published in connection with the sale or advertisement of something other than articles of merchandise (such as the services of a bank, insurance company, laundry, etc.) would not be registrable under this section but might be eligible for registration in the class of noncommercial prints at the regular fee of $2.
While commercial prints and labels are now expressly included in Class (k), section 5 of the general Act covering "Prints and pictorial illustrations”, yet owing to the difference in the fees to be charged and for the purpose of facilitating searches, the Copyright Office has set up a separate category for each type, designating noncommercial prints as Class (k) and commercial prints and labels as Class (kk), and grouping them separately in the Catalog of Copyright Entries (Part IV issued monthly)*. Appropriate forms of application are supplied by the Office free of charge. (Form K for non-commercial prints, form KK for the commercial variety.) Certificate of Registration
The content of the certificate of registration is now governed by the provisions of section 55 of the general Copyright Act, and such certificate is declared by the same section to be admissible "in any court as prima facie evidence of the facts stated therein”.
Subscription price of Part IV for the year is $2, payable to the Superintendent of Documents, Washington, D. C.
The "facts” called for by section 55 include everything necessary to show compliance with the provisions of the copyright law except the fact of publication with the statutory notice. Inasmuch, however, as under section 10 the issuance of the certificate is conditioned upon “compliance” with all the requirements of the Act, including publication with the prescribed notice, the Copyright Office will not make registration unless the copies deposited bear such notice. Any certificate now issued for such material includes a statement that “such copies bore the statutory notice of copyright".
Hence the certificate may properly be regarded as prima facie evidence of a valid copyright until evidence is offered to the contrary. See also in this connection, Berlin v. Evans, 300 F. 677 (1924), and Witmark v. Calloway, 22 F.2d 412 (1927). Of course it is not evidence of compliance with any other applicable law, nor is it in any sense to be regarded as a guarantee by the government of the quality or virtues of the goods advertised. While the presence of a trade mark in the print or label will not in itself prevent registration under the copyright law if the work is otherwise eligible for copyright protection, such registration will not obviate the necessity of registering the trade mark separately at the Patent Office if protection for it is desired under the federal trade mark laws. Rosenzweig v. Forbes, 121 0.G 2667, 1906 C.D. 155. Of course, in some respects a trade mark partakes of the nature of a copyrightable label in that it is used in connection with articles of merchandise and must actually be so used before the application for registration is filed, yet there is a wide difference as to the basis for the claim of exclusive right. A trade mark may be an arbitrary word, emblem, symbol or device, the right to which is acquired by exclusive user, while a label to be registrable for copyright protection must be to some appreciable extent “the writing of an author”, that is, an original composition of artistic or literary matter or a combination thereof, the right to which is acquired by publication with notice of copyright claim. The federal trade mark law is based upon the so-called commerce clause of the Constitution, Article I, section 8, clause 3, while the copyright law is based upon the authors-inventors' clause, Article I, section 8, clause 8. United States v. Steffens, 100 U.S. 82 (1879); Rosenzweig v. Forbes, supra.