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 O.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. Cancellation of Copyright Claim Upon proper petition by the claimant of copyright and surrender of his certificate, the Office will inscribe on the face of the certificate and corresponding record the statement "Cancelled at the request of the copyright proprietor." The Patent Office followed the same practice. Ex parte Fraschetti, 41 USPQ 789 (1939). The petition should set forth the reason for the request, and of course the copyright notice should be removed from any subsequent issues of the print or label in question. The cancellation of the entry would not of itself automatically abrogate the copyright but it would probably have the effect of rendering it valueless by estopping the proprietor from bringing any suit or proceeding for infringement occurring after such canellation. Correction of Errors The utmost care should be taken in filling out the original application, for the Copyright Act provides no machinery for the correction of any errors made by the applicant which are not cleared up prior to actual registration and issuance of the certificate. If the applicant afterwards discovers that he made a wrong statement of a material character, such as the date of publication, it will be necessary to file a new application and surrender the original certifiate for cancellation. Registration in the wrong category will no longer be available as a defense for an infringer (as in Dixie-Vortex Co. v. LilyTulip Cup Corp., 33 USPQ 496; affirmed 37 USPQ 164). Section 5 of the general Act expressly provides that "any error in classification shall not invalidate or impair the copyright protection secured under this Act". Renewal of Copyright The first term of copyright runs for 28 years from the date of original publication, and so far as concerns copyrights "subsisting" at the time the amendatory Act went into effect on July 1, 1940, renewals are governed by section 4 thereof. The application in behalf of "the proprietor" must be filed in the Copyright Office "within one year prior to the expiration of the original term of 28 years". The term "proprietor" here means whoever owns the copyright at the time the renewal year arrives, and not necessarily the original proprietor. Commercial Prints and Labels The certificates issued by the Patent Office prior to 1923 do not give the date of publication but only the date of issue of the certificate. However, the Copyright Office is now in possession of the original applications and dossiers of the Patent Office and will furnish upon request the date of publication in any specific case. Copyright Office Procedure Applications for registration of commercial prints and labels go through substantially the same process of examination as in the case of other copyright material, except that a special section has been set up to deal exclusively with all matters pertaining to this class. The examiner in charge of the section is responsible for determining in the first instance whether the work deposited comes within his sphere of action and, if so, whether the applicant has complied adequately with the statutory requirements. Any material irregularity found is usually straightened out by correspondence or personal interview on the part of the applicant or his attorney. In cases presenting unusual difficulty the examiner may refer the matter to the general Revisory Board, which consists of three members of the legal staff of the Office. If the Board is unable to reach an unanimous agreement, the whole docket with written opinions of the members of the Board is submitted to the Assistant Register of Copyrights for review. If his recommendation is adverse to the applicant, the matter is then referred to the Register of Copyrights for final disposition. The Copyright Office does not undertake to inquire whether the applicant has complied with any applicable law or laws other than the copyright law, such, for example, as the Federal Food, Drug and Cosmetic Act (U. S. Code, Tit. 21, sec. 301, Supp. 1938) or the regulations of the Federal Alcohol Commission respecting labels (formulated under U. S. Code, Tit. 27, sec. 205-e). The responsibility for such compliance is placed squarely upon the applicant himself. Chapter IV Non-Copyrightable Material Mention has already been made of certain works which, though in the form of writings, are not protectible under the copyright law. We shall now deal with the matter more in detail. Blank Forms, Vouchers, Checks, and Like Appurtenances of Business These as a rule lack the necessary element of originality or authorship to qualify for copyright. Having become fairly well standardized, the grant of copyright would tend to hamper the business world in the free use of such material, so that there might come a time when it would be unsafe for anyone to make use of ordinary commercial terms for fear of trespassing upon a copyrighted form. The same applies to standardized clauses in contracts, deeds, notes, mortgages, leases, etc. There are few specific cases on the subject, but note particularly the old case of Baker v. Selden, 101 U.S. 99 (1879), where the Supreme Court held that the copyright of Selden's book explaining his system of bookkeeping did not protect the system nor the blank forms necessary to operate the system, but only the literary matter by way of explanation. If Selden had secured a patent for his new system, the outcome for him might have been different, but then he would have been obliged to bring his suit under the patent law and not under the copyright law, for Baker did not copy any of the literary material in Selden's book, but merely used similar forms in a book of his own composition. Such plans and forms of expression as have been worked out over a period of years by various insurance companies, for example, do not become subject to copyright by being embodied in insurance policies. Dorsey v. Old Surety Life Ins. Co., 34 USPQ 226 (1937); aff'd 39 USPQ 92. But compilations of material taken directly from the statutes and arranged in convenient form |