The Map, the Man, and the Lawsuits: How a Divorce Case Helped Make Copyright Law

Ownership of a physical object does not include the copyright for the work embodied in that object – be it a master tape, film negative, or a copperplate intaglio of a map. The root of this doctrine is a series of cases before the Supreme Court, where the Court held that the copyright “is wholly independent of, and disconnected from,” the physical object it is embodied in. Stephens v. Cady, 55 U.S. (14 How.) 528, 532 (1853). Two years later the Supreme Court again weighed in, holding that copyrights (and patents) were not subject to seizure by state officials. Stevens v. Gladding, 58 U.S. (17 How.) 447 (1855) (same party, Stephens was a misspelling). These cases are well-known – they’re the first cases involving copyright in maps before the US Supreme Court, and they remain important precedents. But the story behind them is obscure – even the transcripts of record filed with the Supreme Court only hint at the details of this case. So, naturally, I started digging – and what I found is a story of infidelity, divorce, alimony, and maps.

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I Got The First GRTX Registration!

Well, at least I think I did. The US Copyright Office this year finalized rules for Group Registration for Short Online Literary Works (GRTX), and the application became available on October 29, 2020. I applied as soon as the application became available, and perhaps fittingly, I used the first ten entries in this blog (not counting a brief “hello world” post from a few months earlier). I received the registration certificate today – an impressive turnaround from the Copyright Office as they strive to modernize and reduce processing times.

I’ll note that the online copyright catalog hosted by the Copyright Office does show another GRTX, registration number TX0008890234, but it’s pretty obviously a test registration done by the Copyright Office itself. So I’m going to award myself the rebuttable presumption of this prestigious achievement. Edit (as of 11/24/20) – the Copyright Office confirmed that the prior GRTX registration was a test and is no longer in the public catalog, so I feel even more comfortable claiming all the glory.

The website for GRTX has excellent detail on the application process, including a video that really walks you through the process. In lieu of a detailed explainer, I’ll simply refer people there. Instead, I figured I’d share some brief thoughts (note that I haven’t checked every single one against the regulations):

  • Firstly, the application is pretty easy to use, especially if you watch the video. You’ll want to have Excel on your system to prepare the provided spreadsheet template, otherwise the the process will be difficult. But it didn’t cause me too many problems.
  • To do the registration you’ll need to generate PDFs of each work included in the group, follow the naming convention required, and put all the PDFs and the Excel file in one zip file and upload that. It’s a little too easy right now to only upload the excel sheet; a check that a zip file hadn’t been uploaded would be helpful.
  • For people who are publishing their material on a third-party platform or otherwise creating content where a printout will show a lot of material they don’t own, the disclaimer process could get very complicated in terms of generating PDFs of the works. I’d suggest it might be simpler to either allow people to provide clean documents with just the short works being claimed, or to provide simple language for excluding anything not in the body of the claimed work. Either way, guidance here would be helpful.
  • It would be nice if a permalink to each work is included in the excel sheet for recordkeeping purposes. It can be optional.

However, the biggest thing for me is probably the time limits. The other limits (maximum of 50 works, they all must be between 50 and 17,500 words) seem fine to me. But for infrequently updated blogs like this one – and many others – making it calendar year instead of 3 calendar months would make more sense and encourage more people in the aggregate to apply. The limitation of 50 works in the group would still limit people from abusing the process.

Also, note that the works have to be published within 3 calendar months – not 90 days from the first work. So it’s basically a system for quarterly registration filings. But since in many quarters I don’t publish more than one or two entries, I’m not sure I’ll bother for the rest of the blog.

These are quibbles, though, kudos to the Copyright Office for getting this system online, and I hope it gets used more. That way, when I brag about being first, it will mean something.


Counting Copyright Registrations 1870-1909

This past spring/summer, my article (coauthored with Richard Schwinn, Ph.D) entitled “An Empirical Study of 225 Years of Copyright Registrations” was published. This post is part of a series studying particular parts of my paper, and sharing in greater detail than I could there some insights.

In 1870, copyright registration activity was centralized at the Library of Congress. My previous post looked at counting registrations before 1870 when registration activity was in the individual district Courts, and basically involved counting pages of records, which generally correspond 1:1 with registrations. However, in 1870 copyright registration was centralized, along with deposit, in the Library of Congress.

With the switch in administration of copyright law effective the day the new law was signed, the transition was not necessarily clean. Many courts show registrations later in 1870 and even in 1871 (the Utah territorial court recorded them until 1879, I’m not quite sure what was going on there). However, the general public seems to have adjusted quickly to the change. The Library of Congress put out circulars explaining how to register to assist with the change (these are mostly from the Copyright Office’s internal files, where they were already collected, but I added 1870 myself, from the Warshaw Collection at the Museum of American History). However, the process of registration really was pretty similar before and after 1870, with the only real change being that of venue. Like before registration was done by depositing a title page and making out a registration to the Librarian of Congress and paying the fee – all before publication. Within ten days after publication two copies of the best edition of the work would be sent to the Librarian of Congress to “perfect” the registration.

Data Sources

One resource I found at the US Copyright Office and was able to use was the record book kept by the Librarian of Congress tallying daily entries by type. for 1875-1885. This book was pretty clearly the basis for the tallies found in the Librarian’s annual reports, and there may be additional research to be done with it in terms of daily and monthly breakdowns. For my purposes, it mostly served to prove that in fact the tallies in the Librarian’s annual reports were for calendar years, not fiscal years. Accordingly, I was able to use the Librarian’s annual reports on copyright business for yearly tallies until 1896.

One confusing detail is that the number of registrations reported for these years was actually the number of deposits made divided by two (because in most cases two deposits of a work were required (this is obvious looking at the above record book). However, clearly in many cases only single copies were deposited, so the number is likely a mild undercount. The why of this isn’t entirely clear – there isn’t any reference to single deposits being permitted in the statute or rules, to the extent they existed, although in the future single deposits would be permitted for things like contributions to periodicals. In the mid-1890s the Librarian stopped reporting the number of deposits and instead reported the number of works deposited, meaning that the numbers no longer need to be divided in half – and are no longer an undercount.

1897 is a problem year in terms of recordkeeping, at least from looking at the annual report. Only 3 months of entries are tallied and the report is clear that this is incomplete. However, in January of 1898 the Librarian transmitted a letter to Congress with the proper numbers for the 1897 calendar year. From 1898 forward the annual reports of the new Copyright Office use fiscal year instead of calendar year for their tallies, leading to the question of how much it mattered to use fiscal year or calendar year statistics. Although in theory these tallies are mostly interesting in terms of tracking large-scale shifts in registration volume, and the change shouldn’t matter that much, having more heterogeneity in the data isn’t ideal. Indeed, there was routinely a 5-10% variance between fiscal and calendar year statistics, as seen below, and using calendar year statistics as much as possible is a way to avoid that. Nonetheless, we had to use fiscal year statistics for 1898-1902 as there is no other data source for those years.

Fiscal versus calendar year variance in total registrations, 1909-1976

The Catalog of Copyright Entries began publication in 1891, as a biweekly catalog of copyright entries, which because of its lack of organization or information beyond lists didn’t prove particularly helpful. Starting in 1903, though, the Catalog of Copyright Entries began including statistics for the first time, and using these we were able to go back to using calendar year statistics going forward, dramatically simplifying our data process through 1909 (and indeed much later).

Ghost Books

One interesting phenomenon is that of “ghost books” – works where the title was entered but the registration was not perfected by deposit. For 1878-1896 the Librarian kept records of both entries and deposits, allowing a simple calculation of percentage of registrations were perfected by deposit – and which were not. Generally speaking it seems that about 20% of works were not deposited, either through inattention or because the work was never actually completed.

Percentage of works followed by deposit

The ledgers break down by type of work as well, showing that music was perfected at a higher rate than books, although the two are pretty similar. Drama on the other hand had an abysmal rate of deposit, and it’s not clear why. Many dramas were unpublished and it’s possible only one copy was being deposited (indeed, the above record book shows many days with only a single deposit). It’s also possible that for unpublished works nothing was ever deposited, since the point was only to claim copyright without suing to enforce it.

Percentage of Title Entries followed by deposit – books, music, drama.

The Data

The purpose of this post has been to give a brief discussion of our data for this period. Much of the data from this project is available on GitHub, -including our R code as well. In addition, I’ve created an Excel File with the more detailed data on just the 1870-1909 era. This is a little different looking than our main data file – before 1909 a number of different classification schema were used, and for the main data file on Github I harmonized pre-1909 data to post-1909 forms. I hope people find this data helpful, and there’s still a few more posts to come from this article.


Counting Copyright Registrations Before 1870

This past spring/summer, my article (coauthored with Richard Schwinn, Ph.D) entitled “An Empirical Study of 225 Years of Copyright Registrations.” This post is part of a series studying particular parts of my paper, and sharing in greater detail than I could there some insights.

When I first joined the Copyright Office as the Abraham L. Kaminstein Scholar in Residence, I had figured I’d focus on the era of the copyright card catalog, which is 1870-1978 (really 1898-1978). And I did spend quite a while on that period, which I’ll go into in a subsequent post. However, I also found myself diving deeper into the pre-1870 copyright registrations, where registration was accomplished by deposit of a title page and filling out a prescribed form of registration with the clerk of the local United States District Court. Little is known about these registrations, and I set out to try to learn more about them and make them available. Many have heard that the project to scan these records, (mostly) held by the Rare Book Room of the Library of Congress is currently underway. In fact, the first part of this project – the roughly 50,000 title pages from this period – has recently been made publicly available.

In this post I intend to:

  1. Give the history of the pre-1870 copyright records themselves;
  2. Describe how Dr. Schwinn and I estimated statistics of these records;
  3. Provide information and analysis about these statistics; and
  4. Shine light on what was being registered for copyright before 1870.
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Video Post: View(s) From The Other Side

It’s been a long time since I posted – I remember getting the last post out in late March and thinking that things would hopefully be back to normal by the Spring, which has obviously not come to pass. In the interim I’ve also made a big move – I’ve joined the faculty of the Southern Illinois University School of Law in Carbondale, IL as an Assistant Professor, where I’m teaching real property and further courses to be named later.

That said, I’ve also taken the time to put together an online version of a videotaped lecture series hosted by the Examining Division of the US Copyright Office from 1985 to 1993, entitled “A View From The Other Side.” The series was created and usually hosted by Jodi Rush, who has been generous enough to provide some context on the series and videos. According to Jodi, she created the series “to educate Examining Division Staff about the industries we served, help them understand the impact of their daily work, and introduce them to some of the luminaries who were instrumental in the creation of the 1976 Act, which of course we were still in the throes of implementing.” I think you can tell that from the many different types of speakers from different sectors – it’s really a snapshot of the different constituencies of copyright law on the cusp of the digital age.

The 22 Videos I have from the series are reproduced below. In each case the Motion Picture Division of the Library of Congress digitized the original U-Matic videocassettes. In cases where the program spanned multiple cassettes I edited the files together myself – I believe everything came out fine but please let me know if anything didn’t. The full playlist is here, and I’ve also embedded it below (it might only show the first video though).


Some Adventures in the Origins of Motion Picture Copyright

I’ve always enjoyed movies, but I’ve never been particularly a movie buff, and I haven’t been particularly knowledgeable about the origins of motion pictures. However, in the past few years I’ve had a chance to become more knowledgable about them, and especially about the first 18 years of their registration at the Library of Congress (and then the Copyright Office at the Library). This has been hastened by working with Claudy Op Den Camp to help research her section in the new collection (which she also co-edited) “A History of Intellectual Property in 50 Objects.”

Book Cover

The book is wonderful and highly recommended, and but I wanted to share some of the research that didn’t make it in – especially about how the forms of registration were chosen, and some of the additional legal history of how motion pictures were finally added to the copyright law in their own category in 1912. So keep reading for more!

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Video Post: The 1984 Congressional Copyright and Technology Symposium

We tend to assume that past policymakers, especially in the copyright arena, were ignorant of the possibilities of a technological future. But I’ve found that many times Congress and other policymakers were better informed than we tend to assume. Take for instance the hearings on CONTU, or the Copyright Office being shown how the web worked while it was still in its infancy. Another example is the Congressional Copyright and Technology Seminar, held in February 1984, where members of Congress and other policymakers were educated by a group of technologists on what they saw as the coming future of technology and how it would relate to IP law.  This symposium had been preceded by a hearing on Copyright and Technological Change in July of 1983.

The proceedings of this conference have long been available in transcript form, but I’ve been able to find the video, digitized by the Library of Congress Motion Picture Division, and I’m pleased to share it below. Note that the was originally on 16 U-Matic videocassettes, I’ve edited the videos together myself, so there may be occasional jumps (you can refer to the transcript for gaps).

Day 1 – February 4, 1984

Day 2 – February 5, 1984

A schedule of the event’s proceedings follows:

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The Copyright in “Little Women”

“An honest publisher and a lucky author, for the copyright made her fortune, and the ‘dull book’ was the first golden egg of the ugly duckling.” – Louisa May Alcott, 1885

With a new movie version coming out, Louisa May Alcott’s novel Little Women is once again in the news, often with some conversation of how Alcott’s publisher urged her to keep the copyright in her work, earning her a fortune. But the story of her copyright is rarely explored beyond that, and I think it’s an interesting one, in that it spans multiple eras of copyright history in a way only a few other works did. It’s also a useful research case study for those interested in using copyright records for historical and literary research. I’ll admit I haven’t seen the film yet, but I’m told that it has a great scene about copyright – I’ll have to check it out.

I’m also informed that the Library of Congress has an exhibition of some of the copyright deposits made by Louisa May Alcott, catch it while it’s still up. The discussion continues below…

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An Inventory of Inventories of Federal Court Records from the WPA

As I’ve been researching lost copyright records from the District Courts (AKA pre-1870 copyright records), I’ve found that the “Inventories of Federal Archives in the States” done by the WPA are invaluable. Series 2 – federal court records – is especially important to those interested in legal history, tracking where things were before it was accessioned to the National Archives (which was only created a few years earlier). In many cases these are more detailed than the National Archives Finding Aids, and/or describe material which didn’t make it to the National Archives.

The usefulness of these inventories is focused in cases like Ohio, where the 1829-1842 copyright record book is listed in the inventory, but hasn’t been seen since. I haven’t yet located this record book (and may not), but having a reference of where things were before the transfer to the National Archives is invaluable, even if occasionally frustrating. Given that these inventories are generally available online but haven’t been organized in one place, I decided to provide such a resource – for my own purposes as well as to help others. In many cases there’s a survey note as well, for instance this is the survey note on the now-missing Ohio copyright record book.

A preliminary checklist was prepared of all inventories produced for this project, which I’ve scanned and reproduced here. Note that Alaska and Hawaii were not yet states and thus were not included. The manual for creating these inventories is also available, here. The Research Bibliography of WPA Publications also lists these, should it be helpful.

Also, although it wasn’t part of the WPA’s inventory, the 1962 inventory of records of the US Supreme Court is here. The list of states follows below the jump.

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