INSIGHT: New Copyright Protocol for Architectural Works—No Stamps Needed

Things are looking up and speeding up at the Copyright Office for architectural works.

On April 23, the U.S. Copyright Office released its final rule on the registration process for architectural works. Applicants will no longer need to submit a paper application nor physical deposit materials to register architectural works. Instead, applications and deposit materials can be electronically filed.

The final rule will go into effect May 23, and any paper applications submitted after this date will be refused registration. In fact, paper applications will be accepted only for “exceptional” circumstances, such as not having access to a computer or the internet.

This new protocol for architectural works should prove beneficial for several reasons, including speed to registration, streamlined deposit options, clear effective date for registration, and other clarifications. The timing of the new protocol is auspicious, too, given the U.S. Supreme Court’s recent declaration that registrations, as opposed to applications, are required for litigation to commence.

Speed to Registration

This new rule comes as part of the Copyright Office’s push to “improve the efficiency of the registration process, and encourage broader participation in the registration system.”

The paper application for architectural works often resulted in prolonged registration processing times, in part because of processing the paper forms and in part because there was frequently lengthy back and forth communications with the Copyright Office because necessary information was not included with the application or excess and irrelevant information was included.

On average, mail claims are registered within seven months of the filing of the application, though it can range from one to 18 months. A mail claim that requires correspondence can average 14 months and can take as long as 28 months if there are “problems or deficiencies with an application, deposit, or filing fee.”

Recognizing this burdensome process, the Copyright Office’s initiative to go paperless will greatly improve processing times for applications. Online applications are averaging a four month turn-around time.

Clear Effective Date

The online application will also assure applicants of the true effective date of registration.

With paper applications, it was suggested that applicants mail their applications via registered or certified mail with a return receipt in order to keep track of when the Copyright Office received the application. With the online application, an applicant is immediately sent a confirmation email with the date of the application, which will later become the effective date if the registration is accepted.

Streamlined Deposit

The Copyright Office previously preferred “one complete copy of an architectural drawing or blueprint in visually perceptible form showing the overall form of the building and any interior arrangements of spaces and/or design elements.”

The Copyright office has clarified that to show “the overall building,” deposit materials must include an exterior view of the front, back, and sides of the building, and the “interior arrangements” are any permanent fixtures within, including walls.

When submitting these items, the Copyright Office previously preferred the following: original format or best-quality form of reproduction, including offset or silk-screen printing; xerographic or photographic copies on good-quality paper; positive photostat or photodirect positive; or blue-line copies (diazo or ozalid process). The new rule allows for depictions of the work in any form, as long as the examiners are able to “access, perceive, and examine” the architectural work as a whole.

Though deposit materials can still be mailed in if the file size is too large, the Copyright Office highly suggests an applicant make use of the electronic upload. Note, however, that a digital copy does not satisfy the mandatory deposit requirement for published works. As before, architects must still submit a physical copy of the “best edition” of the work within three months of its publication.

Other Clarifications

The new rule also clarifies the date of construction requirement, stating that the date is necessary only if the “work was embodied in unpublished plans or drawings on or before December 1, 1990, and if the building was constructed before January 1, 2003.”

For any works created outside this scope, the date of construction is not required, and if the building has not been built, a statement indicating that is sufficient.

Auspicious Timing

The Supreme Court’s March decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC illustrates the benefit of having an efficient registration process. Simply submitting an application, deposit material, and fee is not enough to sue on an infringing copyright any longer (prior to the Court’s decision, there was a Circuit split and some courts, including the Ninth Circuit permitted litigation based on a pending application).

Copyright owners must now wait for the Copyright Office to approve or reject an application before filing suit against an infringing party. Therefore, switching to an online application for architectural works reduces the processing time almost in half, leaving more time to file suit before the statute of limitations runs out.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Meaghan H. Kent is a partner in the Intellectual Property Litigation Practice with Venable LLP.

Danae Tinelli is a staff attorney in the Trademark, Copyright & Licensing Practice at Venable LLP.