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 provided 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 Office.)

Contributions to Periodicals

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,

which should be a complete copy and not tear sheets or pageproof. The use of the plural, "or copies," might refer to the morning and afternoon editions of a daily newspaper containing the same contribution, or to a contribution published in instalments. In the latter case, may the several instalments be deposited together for registration on one application and fee, or must a separate application and fee be submitted for each instalment? While no reported case is found dealing with this question, for the purposes of administration the prevailing view of the Copyright Office is that each instalment, being the writing of an author, must be regarded as a contribution to the particular issue. Inasmuch as the several instalments are published on different dates, there ultimately come into being a multiplicity of copyrights for the registration of which a separate application and fee is required for each. The applicable rule is found in the first paragraph of section 201.18 (as amended in 1938) of the Regulations of the Copyright Office (see Appendix), as follows:

"If special registration is requested for any contribution to a periodical, one complete copy of the number of the periodical in which the contribution appears should be deposited promptly after publication. The contribution to a periodical herein referred to includes any writing of an author published with copyright notice in any given number of a periodical." In the case of a novel or lengthy article first published serially in a copyrighted periodical, the author may save himself the trouble and expense of separate registration of the various instalments by granting the copyright privilege to the publisher of the periodical, to hold the legal title in trust for the author as to the whole or any partial interest in the copyright, such as the right to dramatize or translate or make any other version of the work. Quinn-Brown Pub. Corp. v. Chilton Co., Inc., 30 USPQ 373 (1936).

The publisher of a copyrighted periodical may assign to the author the copyright in any particular contribution owned by him as proprietor. Kaplan v. Fox Film Co., 33 USPQ 469 (1937). The ruling in Douglas v. Cunningham, 33 USPQ 470 (1933), that a transfer of the copyright in the entire issue is necessary to confer title to a particular contribution was disapproved in the Kaplan case and must be deemed unsound. Obviously the pro

prietor could not assign the copyright in contributions which he held in trust for other authors. In the case of New Fiction Pub. Co. v. Star Co., 220 F. 994 (1915), cited as authority for the conclusion reached in the Douglas case, the story published in the magazine bore a separate notice of copyright in the name of the author; the only question being whether the publisher of the magazine was an assignee or a licensee, it was held that he was only a licensee for the first serial rights and therefore could not sue for infringement without including the author as a party plaintiff. In the other case cited, Witmer v. Harold Lloyd Co., 46 F.2d 792 (1930), the story had been sold outright by the author to the publisher of the magazine in which it first appeared, who duly copyrighted the entire issue and afterwards transferred the copyright in this particular contribution by assignment, the validity of which was not questioned by the court. Hence this case, instead of being an authority for the ruling in the Douglas case, sustains the ruling to the contrary in the Kaplan case.

Contributions to Composite Works

With regard to contributions to encyclopedias and composite works other than periodicals, for which the individual authors desire to secure copyright directly in their own names, the statute is silent as to the kind of deposit to be made. Under the prior law it was held sufficient to deposit the sheets containing the article taken from the bound volume as published, Black v. Allen, 56 F. 764 (1893), and it has been ever since then the general practice of the Copyright Office to accept such sheets for special registration, provided, of course, that the article was originally published with separate copyright notice in the name of the author. If not published with separate notice, the procedure of the author would be to obtain from the publisher and record in the Copyright Office an assignment of copyright in the particular article. Thereafter the author would be entitled under the law (section 46) to reprint his contribution with notice of copyright in his own name, but carrying the year date of original publication in the composite work.

Action for Infringement Conditioned upon Deposit of Copies

The concluding sentence of section 12 is of utmost importance,

for upon its observance depends the right to vindicate in court the copyright you have taken pains to secure:

"No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with."

"Action or proceeding" includes a suit to restrain a threatened infringement, and "maintained" includes such a suit. New York Times Co. v. Sun Printing & Pub. Assn., 204 F. 586 (CCA 2, 1913). The plural "copies" here must be deemed to include the "one complete copy" of a foreign published work deposited under this section; and also the "one complete copy" deposited under section 11 if the infringement occurs prior to publication. (See Chapter X, p. 94.)

In New York Times Co. v. Star Co., 195 F. 110 (1912), the court expressed the view that a deposit "in the mail" of the required copies properly addressed "would seem to be a compliance with section 12 sufficient to entitle him [the copyright proprietor] to maintain his action or proceeding" for preliminary injunction. Unfortunately for plaintiff the injunction had been served some hours before the copies were actually deposited in the mail, and the application to punish defendant for contempt for violation of the injunction was accordingly denied.

On the other hand, in Lumiere v. Pathe Exchange, Inc., 275 F. 428 (CCA 2, 1921), it was held that "deposit and registration is each a condition precedent of the right to maintain an action for infringement". The plaintiff had deposited the required two copies of his photograph in the Copyright Office but inadvertently used the wrong form of application and procured a certificate of registration as an unpublished work, when in fact the photograph had already been published some 14 months before suit. The court ruled that this would not do, but that he could still get a certificate of registration as a published work and thereafter maintain another action.

The same ruling was followed in the recent case of Rosedale v. News Syndicate, Inc., 50 USPQ 27 (1941), where the evidence showed that, prior to publication, the work of art in question had been duly registered under section 11, and that upon publication the required two copies were sent to the Copyright Office in obedience to the law, but without the required applica