Revised Definition of Copyright Claimant: Can't Claim It If You Don't Own (All Of) It

The Copyright Office is amending its rules relating to who can apply for a copyright registration. The current rule permits certain classes of claimants, defined as:

1. The author of the work,
2. The person or entity that has obtained ownership of all rights to the work belonging to the author, and
3. The person or entity that obtained from the author the contractual right to claim legal title to the copyright in the application.

The Copyright Office has published its notice of rulemaking to eliminate the third element set out above. That is, once the proposed amendment to the definition of claimant becomes effective, only the author, or a person or entity that has obtained all of the rights to the work from the author, can be a copyright claimant in order to apply to register a copyright. 

So, if an applicant seeks to obtain a copyright registration, the applicant must own all rights of authorship and not merely the contractual right to claim title to the copyright in the application. Excluded from the definition of permitted claimant will be assignees or devisees from the author or copyright owner who do not receive the entirety of the copyright interest. For example, excluded from the revised definition of claimant is a lender that takes a conditional security in software code under development containing the permitted right to apply for copyright registration. To become a successful claimant, the entirety of the copyright rights must transfer to the assignee and not merely the right to own the registration.

A person or entity that has the contractual right to apply for a copyright registration, or the right to own title to an unregistered copyrighted work, will no longer be able to apply for copyright registration in the work. In order to assure that an assignee has the right to apply for registration of copyright in an unregistered work, drafting appropriate language in a transfer document becomes key.