While creative works are protected under copyright law the moment they are created, copyright owners can enjoy several additional benefits if they timely register their works with the United States Copyright Office (USCO).
By timely registering with the Copyright Office, copyright owners can:
Bring an infringement lawsuit;
Enjoy a presumption of validity, subject to timing constraints;
Be Eligible to receive statutory damages and attorneys’ fees in a lawsuit;
Create a public record of copyright ownership and protection; and
Satisfy the Library of Congress’ deposit requirements.
But what should a copyright owner do if the Copyright Office denies the copyright registration?
The Appeals Process and the Role of the USCO Review Board
A copyright registration applicant is permitted to appeal the refusal of a copyright registration twice. The first refusal, or First Request for Reconsideration, is reviewed by a USCO staff attorney in the Registration Program Office who did not participate in the initial examination of the claim.
If a copyright applicant wishes to appeal the staff attorney’s registration decision, she can appeal to the USCO Review Board (the “Board”). The Board hears the second, or final, appeals of refusal of copyright registration. The Board is comprised of the Register of Copyrights, the USCO General Counsel (or designees), and a third member determined by the Register.
The Board bases its decision on the copyright applicant’s written appeal and the administrative record, while also taking prior correspondence into account. Appeals can be expensive and have a low chance of success: the fee for a first appeal is $350 per claim, while the fee for a second appeal is $700 per claim. And, for example, in 2019 only 7 out of 33 second requests for reconsideration were overturned.
CD Projeckt’s Copyright Registration Application for the Cyberpunk 2077 Logo
On August 16, 2018, CD Projeckt (CDP) filed a copyright registration application for the Cyberpunk 2077 logo. A Copyright Office Registration Specialist examined the application and refused to register the work for lack of sufficient authorship.