Whether you learned it in school, at a library, or working in a creative field or industry, you probably know something about the copyright registration deposit requirement. Maybe you know that works have to be deposited with the U.S. Copyright Office for copyright registration, or maybe you remember that the deposits contribute to the Library of Congress’s extensive and comprehensive collections (both of which are still true). Maybe you remember learning you have to deposit two copies of the best edition of your work with the Office.
On this last point, the requirements may have changed. In recent years, the Office has simplified some of its deposit requirements in ways that make compliance easier than ever before. Let’s take a look at what the deposit requirements are and how they might affect you as a creator or copyright owner.
What is the deposit requirement for copyright registration?
When you register your published work with the Office or comply with the mandatory deposit requirement, you must submit copies of your work to the Office. In certain situations, those copies must also comply with the requirement to deposit the “best edition”1 of a work from among multiple editions of the work available at the time of registration. When a work is first published in physical form, best edition physical deposits are generally required except in the situations listed below. For all unpublished works and works only published online, you only need to submit electronic deposits and are not required to submit best edition physical deposits.
In recent years, the Office began simplifying registration deposit requirements for certain categories of creative works. Included here are the changes the Office has made since 2018 as well as some additional guidance.
- Literary Monographs: A literary monograph is a literary work that is published in one volume or a finite number of volumes. Common examples include fiction, nonfiction, poetry, short stories, memoirs, and textbooks. In 2018, the Office published a final rule simplifying the deposit requirements for registering a literary monograph, concluding that, as a general rule, publishers may submit one copy of the best edition of the work and that two copies are not required in most cases. If two copies are required, the Office will contact you.
- Single Serial Issues: A serial is a work issued in successive parts bearing numerical or chronological designations, such as a newspaper, newsletter, magazine, journal, or similar publication. In 2022, the Office published a final rule clarifying the deposit requirements for registering a single issue of a serial publication. Publishers may now upload a digital copy of the issue instead of mailing two physical copies of the best edition, even if the serial is published in a physical form or in both a physical and electronic form. However, when registering a group of serial issues, you must upload an electronic copy of each issue you are registering. By contrast, when registering a single issue of a serial publication, you have the option of uploading an electronic copy or mailing a physical copy. It’s worth noting that sending a physical copy will delay the examination of your claim and result in a later effective date of registration.
- Musical Works: A musical work is a song’s underlying composition and any accompanying lyrics. Musical works are usually created by a songwriter or composer.2 In 2018, the Office published a final rule about changes to the deposit requirements for registering a musical work. If the work was first published in a phonorecord (an audio format such as a CD, LP, .mp3, or .wav file), you can upload a digital audio file as long as you are registering the musical work that is embodied in the phonorecord (and not the sound recording3). You do not need to submit a physical copy of the phonorecord, even if the work was published in a physical format, such as an LP or compact disc. However, if the musical work was published only in printed copies, or published in both printed copies and a phonorecord, you should submit one complete printed copy.
- Photographs: In 2018, the Office published a final rule clarifying that when registering photos using the Office’s group registration options, you must upload an electronic copy of each photo in JPEG, GIF, or TIFF format. However, you do not need to submit a physical copy of the best edition, even if the photos have been published in a physical form, such as in a book, magazine, poster, or other format.
- Architectural Works: The Copyright Act defines architectural works as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” In 2019, the Office published a final rule addressing the deposit requirements for registering an architectural work to allow applicants to submit the deposit in electronic form instead of mailing physical copies to the Office. Applicants may upload a digital file containing the most finished version of an architectural drawing showing the overall form of the building. If the building has been constructed, the applicant should also submit photos showing several exterior and interior views.
What else has changed?
During the early days of the COVID-19 pandemic, the Office created a special accommodation for applicants who are required to submit a physical copy of the best edition. Applicants are allowed to upload a digital copy of the work and a deposit declaration form confirming that they have sent or intend to send the required physical copies within three days. The Office examines the electronic copy instead of waiting to receive the physical copies so that applicants may receive their registration decision much sooner. Although the Office has returned to normal operations, it has decided to retain this accommodation. Applicants may also use this procedure when requesting special handling for a work that requires a physical deposit.
What are mandatory deposits?
Section 4074 of the Copyright Act states that all works under copyright protection and published in the United States are subject to the mandatory deposit provision of the law. It requires the owner of the copyright or of the exclusive right of distribution to deposit two complete copies of the best edition within three months after the work is published. Mandatory deposit applies to works first published in a foreign country when they are distributed in the United States.
What changes has the Office made to mandatory deposits?
Copyright law in the United States has continued to evolve, and the Copyright Office has worked to keep pace with changing laws and technology. More than a decade ago, the Copyright Office exempted works published solely online from mandatory deposit requirements. There are two limited exceptions to this rule: eBooks and eSerials published in the United States are potentially subject to mandatory deposit. However, publishers have no obligation to submit their eBooks and eSerials unless the Library of Congress expressly demands them. In other words, if your eBook or eSerial is needed for the collections, the Copyright Office will let you know.
What about the recent best edition study?
In May 2021, Senator Thom Tillis requested that the Office examine whether it is feasible and advisable to revise the best edition requirements in the Copyright Act. The Office conducted a study, which included reviewing the best edition deposit requirements and any underlying policy objectives, soliciting comments from the public, and consulting with the Library of Congress about how any deposit requirement changes would affect its collections.
During the study, the Library determined that complete digital files are sufficient for most textual works to meet its collections’ needs. Additionally, the Library expects to transition to an e-preferred system for most books and serials, indicating a preference for the electronic version of a work when the content is available in both digital and physical formats. As such, the Office and the Library are working to expand their regulatory and technical capacities to accommodate an increase in electronic deposits through the registration process.
Where can I find more information?
The Office’s website has a page dedicated to mandatory deposits, including frequently asked questions (FAQs), and chapter 1500 of the Compendium of U.S. Copyright Office Practices, Third Edition is all about deposits. For additional or application-specific questions, contact the Office directly via our contact form, by email at [email protected], or over the phone at (202) 707-3000 or 1-877-476-0778 (toll-free).
1The “best edition” of a work is defined as “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.” 17 USC § 101.
2Note that a musical work is not the same as a sound recording. A sound recording is a series of musical, spoken, or other sounds fixed in a recording medium, such as a CD or digital file, called a “phonorecord.” Sound recordings are created by the performer and the producer of the recording.
3Learn more about copyright registration for sound recordings in Circular 56.
417 USC § 407