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vide that any failure to make prompt deposit shall in itself invalidate the copyright which has already been secured by publication with notice; this can now result only upon failure to make the deposit of copies after actual notice and demand by the Register of Copyrights as provided in section 13.
In the so-called “Merry-Go-Round” case of Washingtonian Pub. Co. v. Pearson, the United States Court of Appeals for the District of Columbia, 37 USPQ 429 (1938), reversing the trial court, 32 USPQ 113, ruled that it was contrary to the general purpose of the Act to allow suit to be brought where the delayed deposit took place subsequent to the infringement, reserving opinion as to what might have been the effect had the deposit been made before the infringement. The Supreme Court reversed this ruling and held that once a copyright has been secured by publication with proper notice, the right to bring suit is not impaired by tardy deposit (14 months had elapsed in this case) whether the infringement occurs before or after the deposit is actually made. 306 U.S. 30, 40 USPQ 190 (1939). The Court observed that the statute nowhere defines "promptly"; that proper publication gives notice to all the world that immediate copyright exists; that the duty not to infringe is unaffected by mere failure to deposit copies; and that the use of the word "until" in section 12 rather than "unless" indicates that mere delay in making deposit of copies is not enough to cause forfeiture of the right already granted. Mr. Justice Black wrote a vigorous dissenting opinion, with which Mr. Justice Roberts and Mr. Justice Reed concurred.
An examination of the official Catalog of Copyright Entries shows considerable variations in the time of deposit following publication, but as a rule the copies come along with reasonable promptness. The practice of the Copyright Office has always been to accept copies for registration though deposited long after publication, and this practice found sanction in decisions of the courts even before the authoritative ruling of the Supreme Court in the "Merry-Go-Round" case. See, for example, Freedman v. Milnag, 35 USPQ 184 (1937), wherein the court said: "It is clear therefore that mere failure to deposit promptly after publication does not invalidate the copyright. The fact that the plaintiff delayed for two or three months in applying for registration does not prejudice his rights."
In the preliminary conferences on the original bill which became the 1909 Act, the Register of Copyrights stated that "the present experience of the Copyright Office is that it requires a good deal of insisting to get good copies ... The claimants try to deposit very imperfect copies and anything but fresh copies”.
The committee in charge of the bill sought to meet this problem by requiring in Section 12 the deposit of "two complete copies of the best edition thereof then published" (or, by amendment in 1914, one complete copy of the best edition if it be a foreign work).
The question has arisen whether "the best edition thereof then published" excludes the first edition if at the time of deposit a better edition is available. Section 62 defines the date of publication as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed”. This, taken in conjunction with section 12, would seem to imply that copies of the first edition are sufficient in such cases. The Copyright Office, however, prefers to receive the better edition.
In Twentieth Century-Fox Film Corp. v. Bouvé, Register of Copyrights, 45 USPQ 411 (1940), aff’d 50 USPQ 338 (App. D.C. 1941), which was a mandamus proceeding to enforce registration of a claim of copyright, the material in question consisted of a story in 20 chapters prepared primarily for serial publication in newspapers throughout the country to arouse public interest in the picturization of the story as exhibited in the local theaters. A few days before the serialization began, the plaintiff caused the several chapters to be assembled in seemingly page-proof form, each sheet being printed on one side only with a separate notice of copyright and the words “To be Continued” at the end of each chapter. These were stapled between paper covers along with a formal title-page which likewise bore the copyright notice, and two copies thereof were subsequently sent to the Copyright Office accompanied by an application for registration as a "book”. The Register declined to make registration on such deposit chiefly on the ground that the work as presented did not constitute the best edition then available, since more than half the chapters had already appeared
in the newspapers; that it consisted merely of page-proof of a contribution to newspapers, and that under section 12 one copy of the issue or issues of the newspaper should be deposited instead of the page-proof. But the court, while admitting that the work deposited bore many of the characteristics of page-proof and that it was apparent from its face that the purpose was to have it published in installments in periodicals, yet was of opinion that these considerations should not prevent the registration of the whole as a "book” in view of the testimony of witnesses that a few copies thereof had been exposed for sale in certain bookstores and news stands; and that it could not be said that this was not “the best edition thereof then published,” it being the only complete edition at the time of deposit.
For a similar ruling with respect to miscellaneous "syndicate” material in seemingly page-proof form made into volumes and exposed for sale to the extent of a few copies at a nominal price in certain bookstores and news stands, prior to distribution of the individual items to subscribers for publication in newspapers, see King Features Syndicate v. Bouvé, Register of Copyrights, 48 USPQ 237 (1940), a petition for a declaratory judgment. Here the impelling motive of the plaintiff was admittedly to avoid the payment of statutory fees which, in the aggregate, would run into very high figures if each separate item had to be registered as a contribution to a periodical, as contended in behalf of the Register.
As the law now stands, therefore, it seems to be the fact rather than the form of presentation to the public that determines the right to apply for registration of a claim to copyright, even though such presentation may be more or less colorable and not really intended to satisfy the reasonable requirements of the public.
The law further requires that the copies deposited shall be "complete," which in the case of any published work would require the inclusion of the copyright notice. It was so held in Hoyt v. Daily Mirror, Inc., 44 USPQ 440 (1939). The Copyright Office declines to accept for registration copies of a pub. lished work not bearing the prescribed notice as evidence of compliance with the law. To do otherwise would tend to give the applicant a false sense of security. But it often develops in correspondence that the applicant had erroneously thought he was not entitled to affix the notice to the copies and begin distribution until the certificate of registration was issued. The Office must perforce return the unmarked copies, but writes a letter of explanation to enable the applicant to square himself with the law and reapply for registration later on.
If, on the other hand, the copies deposited bear the proper notice but prove to be otherwise incomplete or defective, the applicant is given opportunity to send perfect copies. It is well worth while for him to do so, for otherwise he may not be in a position to maintain an action or proceeding for infringement, since he cannot properly be said to have complied with the requirements of the Act short of depositing complete copies. Application for Registration
In each case the required deposit is "to be accompanied by a claim of copyright”. This does not refer to the notice of copyright appearing on the copies, although the presence of such notice in itself constitutes the effective claim of copyright. The Copyright Office has always construed this clause to be equivalent to “accompanied by an application for registration of a claim of copyright." In order to discover what the application must contain, it is necessary first to turn back to section 5 which requires that “the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs”, and then forward to section 55 which tells what the certificate must set forth. The Copyright Office furnishes gratis suitable forms of application for the various classes. (See Regulations of Copyright Office, in Appendix, p. 220.) These forms should be filled out with the utmost care by the applicant, since they constitute, together with the copies, the basis of the facts stated in the certificate and become a part of the permanent records, which are open to public inspection.
The registration of claim of copyright, generally speaking, is presumed to be made on the day of receipt in the Copyright Office of the required deposit with proper application and fee. Thompson v. American Law Book Co., 119 F. 217 (1902). In all cases, however, it is the duty of the Register to make careful examination, on the evidence presented, to see whether the statutory requirements have been complied with before he can issue
the certificate. This necessarily follows from the provisions of section 10 of the Act:
“That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificate pro
vided for in Section 55 of this Act." Premature Deposit
Where the copies are deposited prior to the date of publication, the following rule of the Copyright Office governs :
“Provided, that if copies in the form prescribed by Section 12 and by this Rule are deposited prior to the date of publication, they will be retained to await the date of publication, and registration will be made on receipt of a corresponding application for registration duly executed, and the prescribed fee.” (Section 201.7 (b), Regulations of Copyright
Section 12 of the Copyright Act further provides that "if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution” shall be deposited.
The term "contribution” is not found in the classes of writings enumerated in section 5, and so must be understood here as embracing any work subject to copyright, whatever its nature may be, from a literary masterpiece down to a mere advertisement. The primary purpose of the clause is to take care of the situation where the author of the contribution desires to secure the copyright thereof in his own name, distinct from the copyright of the publisher covering the issue as a whole. This he can do by affixing to the contribution a copyright notice in his own name and then making the required deposit with an application for "special” (i.e. separate) registration.
If any given contribution does not bear a separate notice and is owned by the publisher of the periodical, it is protected by the general copyright of the issue in which it appears without any need of separate registration; for section 3 provides that the copyright of the periodical "shall give to the proprietor thereof all the rights which he would have if each part were individually copyrighted under this Act.”
Note that “one copy of the issue or issues” must be deposited,