Suppose that you have an assignment of a copyright or a security agreement for a copyright. Are you required to record this assignment or security agreement against the copyright registration? Should you record this assignment or security agreement with the U.S. Copyright Office? The answer is YES!
In the United States, 37 C.F.R. § 205 states that “any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document.” Thus, documents pertaining to copyrights are recorded in the U.S. Copyright Office.
Not all documents are eligible for recordation with the U.S. Copyright Office. Documents must “pertain to a copyright”. These type of documents must have a direct or indirect relationship as to the existence, scope, duration, or identification of a copyright, or to the ownership, division, allocation, licensing, transfer, or exercise of rights under a copyright. Examples of documents eligible for recordation include assignments, security interests, exclusive and nonexclusive licenses, contracts, powers of attorney, certificates of change of corporate title, and decrees of distribution. Examples of documents ineligible for recordation include a bill of lading referring to a shipment of motion pictures and an assignment of rights in a patent or trademark.
Documents eligible for recordation must be complete by their own terms, be legible, include an original signature (or proper certification if submitted as a photocopy), and be accompanied by the correct fee. Otherwise, the document will be returned unrecorded. Any document for recordation that contains a reference to a schedule, appendix, exhibit, addendum, or other material has to be attached for recordation with the document. The U.S. Copyright Office does not determine the legal sufficiency of any document submitted for recordation. The U.S. Copyright Office also does not screen the document for errors, discrepancies, or content and does not generally correspond with the submitter about the sufficiency of the document.
When all of the elements required for recordation, including an eligible document, fee, and any additional required information are received in the U.S. Copyright Office, it will receive a date of recordation. The document is returned to the submitter with a certificate of recordation after the document has been recorded. The recordation process may take several months or longer to be processed in the U.S. Copyright Office. Because of this, the submitter may request that the U.S. Copyright Office provide a return receipt. To obtain a return receipt, the submitter must submit an extra copy of the form and a self-addressed, postage-paid envelope. The U.S. Copyright Office will then attach a date-stamped return receipt to the extra copy of the form and send it back to the submitter in the self-addressed, postage-paid envelope.
You are not required to record a transfer of copyright ownership or other document pertaining to a copyright with the U.S. Copyright Office. The recordation is voluntary. However, to encourage document recordation, the law provides certain legal advantages including priority between conflicting transfers and “constructive notice” to the public. The benefits of recordation include establishing a public record of the contents of the transfer or document such that members of the public are deemed to have knowledge of the facts stated in the document and cannot claim otherwise. Some courts have held that, in order to perfect a creditor’s interest, a security interest in a registered copyright must be recorded with the U.S. Copyright Office.
True and accurate copies of the recorded documents are available for public inspection in the U.S. Copyright Office. Documents accepted for recordation are numbered, cataloged, and imaged for the public record. The U.S. Copyright Office’s online Public Catalog indexes the recorded documents under the names of the parties, the titles they contain, and where applicable, the registration number(s) for the works associated with the documents. The certificate of recordation bears the date of recordation and the volume and document number identifying the recorded document. A numbered copy of the original document will be made available by the U.S. Copyright Office to the public upon request for public inspection and copying.
Based on the above, you should voluntarily record your assignment or security interest in a copyright registration with the U.S. Copyright Office. By doing so, you will provide constructive notice. A third party will be able to search the records of the U.S. Copyright Office and cannot argue that it did not know of the transfer or security interest against the copyright registration. Therefore, it is recommended that you record your assignment or security interest with the U.S. Copyright Office.
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