Mandatory Deposit – little known requirement of United States Copyright Law

A copyright is a set of exclusive rights granted to the creator of a new artistic work when that work is fixed in a tangible medium. This means that when a musician records a song or an artist applies paint to a canvas, they are automatically granted a patent on their new artistic work. Copyright grants an artist the exclusive right to reproduce, distribute, display, perform, transmit their artistic work or make derivative works based on their work. A copyright owner can register their copyright with the Library of Congress to strengthen and perfect their copyright in the United States, but registration is not required for the copyright to be granted.

A little known aspect of copyright law in the United States is that all works protected by copyright that are published in the United States are subject to the mandatory deposit provision of the copyright law (17 United States Code section 407). Mandatory deposit is a legal obligation and applies to all United States and foreign publishers distributing their works in the United States. The mandatory deposit provision ensures that the Library of Congress has an opportunity to obtain copies of every copyrightable work published in the United States for its collections or for exchange with or transfer to any other library.

United States copyright law requires that two copies of the best edition of every copyrightable work published in the United States be sent to the Copyright Office within three months of publication. Works deposited under this law are for the use of the Library of Congress. Works that are published in a foreign country are not subject to the mandatory deposit requirement until the work is published in the United States.

The mandatory deposit requirement is separate an distinct from registration of a copyright. Registration of a copyright is voluntary, mandatory deposit is mandatory. This catches many copyright holders and attorneys off guard. If compliance with the mandatory deposit requirement is not met within three months of publication
in the United States, the Register of Copyrights may facilitate, demand, negotiate, or exempt the provision of copies. In most cases, a copyright owner can satisfy the mandatory deposit requirement by submitting an application to register a work, if the copyright owner submits two complete copies of the best edition.

There are some exemptions to the the mandatory deposit requirement such as diagrams and models illustrating scientific or technical works, lectures, sermons, greeting cards, tests with answer keys, stationary and works which exist solely online. The list of exempted material is long and very specific. The list of works that are specifically not granted an exemption is also long and specific, such as globes, three dimensional maps, architectural works and movies.

There are penalties associated with not complying with the mandatory deposit requirement. The Library of Congress can fine a copyright owner $250 for each work not deposited, the retail cost of the product, and repeated failure to make a deposit can be fined and additional $2500.

It is unlikely small publishers and individual artists are going to be the target of fines, but when the cost of compliance is so low it is better to comply with the mandatory deposit requirement by registering the copyright than to risk the possibility of a fine.

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