Friday, February 5, 2016

University Claims Copyright on Formula

Dear Rich: I am looking to license a copyright for a creative process -- a method of calculating something -- that was developed within a university. I developed my own formula and process for which a provisional patent application was filed. One of the developers developed the initial copyright with the university and now they are claiming a derivative work. We have agreed to a royalty rate from our technology but can not find an example to compare for a rate. The original copyright is maybe 1% of our overall new technology. Can you help me with a suggested fee?
Much as we'd like to help, we wouldn't know where to start. The fact that the original university innovation accounts for 1% of the overall technology is not a helpful indicator, especially if that innovation contributes more than 1% of its value. This is why intellectual property valuations are complex and typically managed by experts.
Copyright on process? Our other concern is that the university is claiming a copyright on a process. The Copyright Office states that "ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices" are all ineligible for copyright protection. At best you can copyright the description, explanation, or illustration, that is used in connection with the procedure or process. So, we're unclear as to how someone can assert a copyright claim over material that is not copyrightable. Normally, to stop someone from using a process or method, the owner would need a patent (or an obligation to maintain trade secrecy, if the process were a trade secret) not a copyright. In addition, the fact that the university process may not be protectable could affect the patentability of your formula (should you follow up with a patent application).
Maybe we're wrong ... Perhaps we are misinterpreting what's at stake - -for example, maybe you are referring to the use of software code protected under copyright. In any case, with so many factors in play -- the university, the developers, patents and copyrights -- we think you're best off consulting with an intellectual property attorney.

Monday, February 1, 2016

Can I Use Feminist Phrase on T-Shirt?

Bella Abzug
Dear Rich: I want to use the phrase "Women belong in the House, the Senate, and the Oval Office" on a t-shirt. My group will be selling these shirts as a fundraiser. The quote doesn't seem to be attributed to anybody, but lots of online stores have shirts with the same phrase. If we use a different design from those retailers, are we in the clear since it's a short phrase? 
You should not run into any problems using the quotation on t-shirts. You're correct that copyright doesn't protect short phrases although that would not be an issue here because nobody is claiming authorship of the quote. Note that a variation on the phrase was popularized (and sometimes attributed to) Bella Abzug.
You are also okay because nobody has sought to assert trademark rights to the phrase. Curiously, in 2010 an applicant from California applied to the USPTO to register the phrase, "A Woman Belongs in the house the White House the House of Representatives the House of Congress the House of the Senate the Mayor's House the Governor's House the Courthouse" on caps and t-shirts. The application was approved by the USPTO but abandoned before registration. Similarly, a 2007 application for A Woman's Place ... is in the White House" was approved for registration but was abandoned by the applicant.

Wednesday, January 27, 2016

How Does Fotog Dad Leave Copyrights to Kids?

Dutch children photographed at Ellis Island
Dear Rich: My dad is a fine-arts photographer. His photographs have been exhibited in gallery shows many times. On his computer, he has many thousands of images, pretty much all the same quality as those he has shown. He does not mention his intellectual property or copyrights in his will, only"his artworks" meaning the ones hanging on the walls of his house. What should he write in his will if he wants his five kids to be able to split the profits equally from these images, should they ever get published within the copyright period but after his death, and actually produce a royalty or money from their sale? 
We can't provide the language to use in a will -- state laws differ and we're not an estate planning expert -- but we can highlight five important issues.
Artworks. You state that your Dad is using the term "artworks" and that it refers to pictures hanging in his home. To avoid confusion your father may want to make it clear that the term "artwork," as currently used in his will, does not refer to the prints of photographs he created.
Photo copyrights and photo prints. The existing prints of your father's works are tangible assets; the copyrights in the photos are intangible assets. Both should be transferred by will. In other words, your father must specifically reference the copyrights when transferring their ownership. If he fails to do so, the copyrights will likely fall into what is known as the residuary estate and be divided according to the residuary estate instructions.
Copyrights. Your father owns the copyright in the photos unless he assigned rights to someone else or he created the photos as part of his employment. If he grants rights to all five siblings equally they would all be co-owners (and each could exploit rights as long as the other co-owners were compensated). This may not be an ideal method for exploitation in which case, the siblings may decide to transfer all rights to another entity -- for example, an LLC -- and set up a system for exploitation and decision-making.
Any existing deals. If there are currently royalty-generating deals in place, your father's will should assign the right to receive royalties from those deals to the children.
Bypass the will and assign them now. Your father may want to make the grant of rights prior to death. In that case he need only execute an assignment of copyright to the children as co-owners.That decision may require consultation with an attorney to determine if there are any IP, tax, or estate considerations as explained in this article.
P.S. Dept. Now may be the time to organize and register group collections of your Dad's photos

Monday, January 25, 2016

Is Music Compulsory License Needed for DVD of Film?

What if a filmmaker wants to record a cover of a song for use in a film and has no plans to put the cover song on a soundtrack CD or to make downloads available. Say the filmmaker hires his musician friends to record it, only for use in the film. I know the filmmaker would need a sync license. But would the filmmaker need a mechanical/compulsory license if the cover song were never sold on CD or downloads?
You are correct that a sync license should be negotiated between the filmmakers and the owners of the song. However, a compulsory mechanical license would not be needed. This is true, even if the filmmakers issued DVDs or downloads of the film. That's because a compulsory license is only granted on phonorecords -- copyright lingo for media that embodies only sounds (thereby excluding audio-visual recordings such as movies). A DVD or download of a film is not a phonorecord.

Wednesday, January 20, 2016

Is It Legal to Trash Old Computer With Licensed Software?

Dear Rich: I have a creaky ancient computer that's long outlasted its design life. Some of the software installed on the computer is under various proprietary or open source licenses (GNU General Public License and so forth) that either prohibit transferring the software at all (many proprietary programs) or impose onerous restrictions on doing so (GPL-licensed software requires you distribute the source code). My state requires defunct electronics to be appropriately recycled -- but, doing so means transferring the device, which may contain code that can't legally be transferred. In most cases, with the GPL, you're not even allowed to ask the destruction service to sign an agreement not to access or copy the licensed software. So, from a legal standpoint, can these license terms actually bar you from legally disposing of a dead computer or device?
We salute your obedience to your software licenses but we feel you are overthinking this one. Software is licensed primarily to control its duplication and limit its uses. If your ultimate objective is to deep-six the computer and its licensed programs, a licensor would have little motivation to spend the time and money to go after you -- assuming there is some way the licensor could even learn of your actions.

Monday, January 18, 2016

When Do Comments Become Co-Authorship?

Dear Rich: I'm a writer, and after your most recent column, I'm wondering: Are there any clear legal standards regarding when editorial suggestions or changes to a work created by someone else rises to the standards of a joint work? (I'm not talking here about works made for hire or by employees, which I know are a separate case.) Here are some examples: (1) someone proofreads my manuscript and marks grammatical and typographical corrections as well as pointing out some factual errors or inconsistencies (such as spelling a fictional character's name two different ways at different points); (2) I read a friend's screenplay and offer some notes on the story structure and characterization, some of which he decides to follow; (3) someone suggests (but does not commission) a basic idea or topic for a work. ("You should write about X."); (4) I'm writing a work about a particular subject and contact an expert knowledgeable in that field on certain related points of fact. If I use those facts in the work, does the expert now have a claim to the work? What about if I ask for and receive permission to quote some portion of their remark? Basically, do I need to start shoving copyright assignment forms any time I talk to someone? Ack! 
As a general answer, none of your four scenarios would likely result in a claim of successful co-authorship. Here's a more detailed breakdown.
Scenario 1: The proofreader. Someone who corrects punctuation, grammar or factual inaccuracies will not rise to the level of a co-author because as one court put it “The copyright laws do not protect stylistic and grammatical editing.”
Scenario 2: The helpful friend. Most courts require that a person’s contribution consist of protectible expression—that is, actual written work—for that person to be considered a joint author. As a court stated, "...[W]hen an author contributes only ideas to the development of a work, whether or not it is a "joint work," without reducing those ideas to an expression, that author does not obtain an interest in the work."
Scenario 3: The suggested idea. Same as above unless the idea was presented in an extremely detailed manner -- for example with characters fleshed out and plot intact, and in a fixed manner (on paper or via email, for example). (And that's assuming that you incorporate these ideas in your work.)
Scenario 4: The helpful expert. Facts are not protectable under copyright. As for the interview comments, courts may presume an implied consent when answering interview questions. In some cases, courts have held that some oral interviews don’t qualify for federal copyright protection, at all, and may qualify instead for what is known as common law copyright. In one such case involving an Ernest Hemingway interview, the court  hinted that Hemingway's failure to limit usage at the time of the interview implied unlimited use afterwards.

Thursday, January 14, 2016

Paid to Write Book: Does Author Own the Copyright?

Dear Rich: The president of a company paid me to write a book about his company. We never drafted a contract; he just told me to bill a flat fee monthly. The book is very close to completion, and he recently decided he no longer needs my services. As an independent contractor and the book's author, do I own the copyright?
Maybe. And if you do, there may be restrictions on what you can do.
No written documentation. We start with the principle that you, as the writer, own the copyright unless: (1) you signed a written assignment of the copyright to someone else; (2) you were employed to write the book (in which case the employer owns the copyright); or (3) you contracted to write the book, the work falls in one of the enumerated categories, and you signed a work made for hire agreement. Since there was no written documentation, we can probably eliminate (1) and (3).
Were you an employee? If the company can demonstrate that you meet the criteria of an employee (as set forth in this article), then you don't own the copyright. As you can see from a cursory look at the criteria, most writers in your situation are not employees.
Did others contribute to the writing? If the president (or someone else employed by the company) contributed materially to the creation of the book they would be joint authors with you and share the copyright. Alternatively, you and the president may have made separately copyrightable contributions to the book. We wrote about those situations in this article.
What if you claim copyright? If you claim copyright and reproduce the book, the company may object and advance the arguments above. They also may offer more creative arguments for example that you violated trade secrecy law (a long shot, unless you're considered an employee). Alternatively, they may claim that even if you own copyright, you created an implied license for the company to use, post, or publish the book on a nonexclusive basis. Such arguments have been successful in the past. If that argument were successful in your case, you would still own the copyright but you could not provide an exclusive license to a publisher (because the company would always have a right to reproduce the work as well).

Monday, January 11, 2016

How Much Trade Secrecy is Necessary?

Dear Rich: I read your article about trade secrecy programs. You write: "A small start-up company need not implement the same type of trade secrecy program as a Microsoft or IBM." Why not? A resource is the same in value no matter if it is a Microsoft, a start-up, or a hobbyist-inventor. Correct?
As we explained at our trade secrecy site, in cases of trade secrecy theft, courts seek evidence that your company took reasonable precautions to prevent people who are not subject to confidentiality restrictions from learning your secrets.
What's reasonable? That depends on the size of your enterprise and the value of your trade secrets. For example, you may feel that more care should be taken to protect extremely valuable software code or marketing plans than less unimportant customer lists. It's true that a start-up's trade secrets may ultimately have the same value as secrets held by Apple, Microsoft, or Facebook. But a start-up can implement a much simpler trade secrecy program simply because of the scale of its enterprise. With fewer employees, reduced contractor access, and smaller office geography, a start-up's trade secrets can be held closer to the chest without the complex security procedures of a NASDAQ giant. As businesses expand, so will the trade secrecy procedures.

Wednesday, January 6, 2016

Should I Use Design Patent or Trademark to Protect Logo?

Dear Rich: Locarno Class 32 is Graphic symbols and logos, surface patterns, ornamentation. But does this applies to US design patents? I am considering to design a logo for my products including home textiles, home furniture, and the like. If I have a logo patented, I will use it for all of my products. Is it possible? 
Many companies combine trademark and design patent protection (as explained here). But we think a better choice for you and your logo would be to bypass the expense of design patents and just seek trademark protection. When your logo functions like a trademark, you can stop others from copying from a complete class of goods (for example, lawn furniture) rather than just the specific goods for which you obtained design patent protection. In short, trademark protection would save a great deal of money and achieve more expansive protection.
What's the Locarno Class? The Locarno Classification system is an international classification system for design patent protection. The U.S. uses a dual classification system that combines Locarno with the U.S. classification system. This improves access to U.S. Design patents in foreign search files.


Monday, January 4, 2016

How Do I Register a Group of Published Photos?

we can send a man to the moon, but ...

Dear Rich: I’m mystified by the copyright registration rules. I post daily photos on a photoblog, and though there’s no explicit offer to sell them, I mention that I’m represented by an art gallery. I’ve been filing about 100 images every three to four months as unpublished photos, but now I worry that those filings may be defective because they may technically be published. Is there any way to go back and fix the filings if they’re improperly filed? And going forward, is there a way to file a large batch of published images all at once? I certainly can’t afford (money or time-wise) to register 300 to 500 individual images every year.
We sympathize with your plight. You're wrestling with three confusing copyright issues:
Is a photo published when posted online?  Although courts and legal experts have debated the issue over the years, it appears settled that posting photos on the Internet in a manner in which they can be copied or downloaded (and restrictions are not imposed), constitutes "publication" under copyright law.
Is there a way to go back and fix filings? The Copyright Office provides Form CA for use when the facts in an earlier registration are incorrect or incomplete and you want to place the correct or complete facts on record. Before making that correction, we would suggest you speak with an information specialist at the Copyright Office. Call (202) 707-5959 or 1-877-476-0778 and press "0." (Here's more on the procedure.) Inquire as to whether a correction is necessary in your situation.
Is there a way to file a large batch of published images at once? Yes, we discuss it in this video and the Copyright Office explains the rules here and here and explains the eCO filing method, too. Of course, if you prefer registering the works as unpublished photos simply file your application as an unpublished collection before you post your photos.

Wednesday, December 30, 2015

Darth Vader BBQ Grill?

warning: grill has tendency to cook on dark side
Dear Rich: Is it possible to build something completely new but with the influence of themes? For example, could I build and sell BBQ's in the style of maybe Darth Vader but with no reference to the character? 
There's no doubt that your grill would be a hot item. Darth Vader is the most profitable of the Star Wars characters -- a video of an unlicensed Darth Vader wood stove got 11 million hits on Facebook!
The Force won't be with you. We're not sure what you mean when you say your grill will make "no reference to the character." We're guessing that the point of your design is to conjure up Darth Vader in some manner. If it does so, even without using his name or his helmet, you'll soon have a Disney attorney breathing down your neck. That's because Disney is expecting to reap over $5 billion dollars in Star Wars merchandising next year --  far more than from movie tickets. And with so much at stake the lawyers who discover unlicensed merch will organize some claim to stop your stylized grill -- whether it is trade dress, false advertising, or copyright infringement. (Yes, we know copyright does not protect style per se, but courts have been swayed by strong style similarities.) Even if your design is so far removed from the character that you will prevail in court, we doubt whether you want to expend the time or money for your defense. For now, Star Wars chefs will have to make do with toasters, oven gloves, and waffle makers.

Monday, December 28, 2015

Using Prayers in Romance Novel

Dear Rich:  I recently published a romance novel (as has everyone apparently). I used some liturgical prayers in it, and cited the source on the book copyright page, but I never got permission. Does the citing of the source of material obviate the need to obtain permission to use it? Citing source material -- always an honorable gesture -- is not a defense to copyright infringement. The good news is that most liturgical prayers are in the public domain (as are most traditional prayers). Some, more contemporary twentieth century prayers are still protected under copyright. The general rule is that any prayer, first published in the U.S. before 1923 is in the public domain and is free for you to use. Of course, using a portion of a copyright-protected prayer may also be excused under fair use principles -- and we are inclined to believe that a prayer used in a romance novel is a transformative use.

Wednesday, December 23, 2015

Can I Mark My Design with Patent Pending?

More on design patents.
Dear Rich: If I submit a design patent, am I allowed to mark my product as patent pending up until the product is either accepted or rejected?
Once you have filed a  provisional, utility or design patent application with the U.S. Patent Office, you can mark your product as "Patent Pending." False use of the marking -- that is marking it when no application is pending -- is prohibited. You can place the notice (or something similar such as "Pat. Pend." or "Patent Applied For") on the invention, the design product, the product package, marketing materials, at your website, or in similar locations. And of course, labeling your design as "Patent Pending" does not give you any patent rights. Protection begins once the design patent is issued. Here's more on "patent pending" status.

Monday, December 21, 2015

Wants to Sell Sequel to Well-Known Novel

Dear Rich: For several years I've been researching and writing for a novel I describe as an anti-sequel to a popular and influential novel by a well-known author of the fifties that advocates a greed-is-good philosophy. The characters in this story are the next generation from the heroes in the original (who died tragically, leaving their children to be raised by others), and there is conflict between those who espouse the philosophy of the prior story and those who emphatically do not. So, none of the characters from the original appear in my story - even the use of the names can be avoided if necessary. But there will be no doubt for the reader which story I am taking off on. This is not a parody but an imagined continuation of the other. The working title is a clear reference to the older book. How much trouble might that put me in? I had thought of pitching it to the same publisher as the original, thinking it would also stimulate discussion about and sales of that book to which they hold the rights. Good idea, or not so much?
We don't think pitching your idea to the rights holder for the book (it may not be the publisher) is a good idea. The book upon which your sequel is based is already the subject of TV and movie deals and we strongly doubt whether an unauthorized sequel would be welcomed. Further, pitching your idea eliminates any hopes that your book -- should you self-publish it -- can fly under the radar, unnoticed by the copyright owner.
The horror! The horror! We can't say whether your work qualifies as a fair use. That's always a crapshoot. It's possible you may be able to legally justify your sequel --  for example, the author of the Wind Done Gone survived an expensive lawsuit and was able to publish a book derived from Gone With the Wind. That author renamed the major characters and avoided much of the plot from the original, and told the story from the point of view of a slave, supposedly Scarlett O'Hara's half-sister. At the same time, the author of 60 Years Later, an unauthorized sequel to Catcher in the Rye, lost his expensive court case against author J.D. Salinger, though he was eventually permitted to publish his book in the U.S. Win or lose (and we think the latter is more likely), you will likely face an expensive lawsuit if you proceed with publication of a book intended as a"continuation" of a best-selling author's novel.
P.S. Have you considered writing the sequel to a book in the public domain?

Thursday, December 17, 2015

Has Concerns About Revising Another Author's Book

Dear Rich: I was recently asked to revise a book that another author wrote. The publisher claims ownership of the original writer's book. Before signing on, would I not need to request access to the original contract between the publisher and original author; to ensure there isn't some way the original owner could take back their ownership rights (and myself out any financial gains from my work)? I am thinking there could be some clause to rescind ownership (don't know) but what makes me uneasy is the publisher has a very aggressive schedule for wanting this revision and I can't understand the urgency.
It would be fairly reckless for the publisher to contract for a revision knowing it lacked the rights to modify and republish the book. If you're concerned that the publisher is not being truthful, you should avoid the arrangement or consider using contractual clauses known as warranties and indemnity in which the publisher "insures" you against the disasters you describe. (We've talked about these provisions here and here).
What about the copyright? You could consider researching Copyright Office records. Of course, determining copyright ownership may not always answer your question as some authors exclusively license book rights to a publisher but keep the copyright. Or alternatively, a publisher may have held the copyright but rights reverted to the author typically if the book were out of print.
Trade custom. In any case, publishers routinely contract with outside authors to revise books in their catalog and typically the underlying author agreement is not provided. That could be because of confidentiality reasons, or because the publisher may not wish to reveal the terms of the author agreement to a third party, or the publisher feels it has no obligation to do so. As for the publisher's sense of urgency, it could just be business as usual.
P.S. Is the original author of the book available to answer your questions?

Monday, December 14, 2015

Do I Have to Provide Attribution for a Public Domain Work?

altered PD photo from "The Art of Orange Peeling" (1905)
Dear Rich: Must attribution be given for the reproduction of Public Domain (PD) works? In other words, is there anything stopping one from 'rehashing' an ancient PD text into an entire website or a series of blog posts, all without attribution? What if the reproducer were to add and edit the PD work, inserting images and replacing "thou" and "thee" for the more modern alternatives? We won't comment on the ethics of claiming authorship of public domain works -- but you're free to do so, thanks in part, to the Supreme Court. Of course, if you're adding new material to a PD work -- for example, photos, music, or text -- you'd need permission of the copyright owner of the new material.

Wednesday, December 9, 2015

Wants to Adapt Book Into Broadway Musical

Dear Rich: I'm currently working on a class project where we are adapting a book (published 2011) for a Broadway show. What rights do we need to secure in order to do this? I can find a lot of information for book to film or book to tv but nothing about musicals or stage productions.
If you want to adapt a work -- book, TV show, movie -- into a Broadway musical, you will need to find the copyright owner and negotiate the grand performing rights (or "grand rights" for short). We explain how to perform copyright research, here. We think this type of negotiation goes way beyond the budget and means of a class project and for that reason, it would be great, though unlikely, if the copyright owner would create an informal arrangement, limiting your use to the class project. That's probably not possible in which case, we'd suggest considering a public domain adaptation.

Monday, December 7, 2015

Does Contract Prevent Me from Selling eBooks?

Dear Rich: Twenty-something years ago I sold a few stories to a website. The website now occasionally republishes old stories, but no new content. The contract read: "Licensor grants COMPANY a perpetual license to copy, use, display perform and distribute the literary work known as STORY. The foregoing license will be exclusive in the online medium, such that Licensor agrees not to provide any license or otherwise permit any other person or entity to copy, use, display, perform, distribute or modify the Work through or in the online medium. COMPANY agrees that Licensor owns all copyright and other proprietory rights in and to the Work, other than the license specifically granted hereunder." My question: Can I sell the story as a reprint to an anthology, if that anthology will be available both in print and as an ebook?
We believe you have the right to sell your story for print purposes. You only licensed certain digital rights (the "online medium") and the grant does not include the magic words "print" or "publish." For similar reasons, we believe that eBook rights fall outside the license but that's a more nuanced issue.
The backstory on eBook rights. There's been considerable dispute as to whether older publishing contracts restrict rights for newer formats. In one case, a publishing contract granting rights to "print, publish and sell in book form” was held not to encompass eBook rights. In another case, a contract granted rights in "book format." The agreement also included a clause that the publisher, “shall grant no license without the prior written consent of the Author… including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented…” A judge held that this clause prevented the author from separately exercising eBook rights. You can read more about the legalities of interpreting electronic publishing rights, here.
Is an eBook distributed through an online medium? Your contract prohibits you from allowing "any other person or entity to copy, use, display, perform, distribute or modify the Work through or in the online medium." As we noted, the grant does not include the words "print" or "publish," nor does it reference a "book form" such as an anthology. Because the grant lacks the broad language of other publishing agreements ("electronic means now known or hereafter invented") and because it refers to "display", we think it applies only to traditional websites, blogs and other online reproduction. We don't think that the eBook distribution channels as popularized by iBooks and Kindle -- and which did not exist at the time you sold your story -- are included. It really comes down to how broadly a judge interprets the language, "the online medium," something we cannot predict with certainty.

Wednesday, December 2, 2015

Can City Stop Me From Using Photos and City Seal?

Dear Rich: Can a city prevent me from using pictures of their workers who have the city seal logo on the workers hats and shirts. I am using the pictures in a power point for educational and critiquing purposes. 
The city probably can't prevent your use of the photos or municipal seals ... but there are exceptions.
The photos. If you took the photos or you have permission of the copyright owner (usually the person who took the pictures), then you would be good to go. If the city owns the copyright in the photos your use would be an infringement unless you can justify your presentation as a fair use as was done in this city ... and this one, too.
The city seal. To the extent the city seal functions as a trademark, you're free to reproduce it for editorial purposes (such as your presentation). Some city and county governments have passed laws regarding the use and reproduction of the seals. For example, the city code might read:
"The County seal shall be deemed the property of the County; and no persons shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal for nongovernmental purposes unless such use is specifically authorized by law."
However, such codes likely violate free speech right according to a federal court and the government could only halt uses that were "reasonably calculated to convey, a false impression of sponsorship or approval [by the government]." So, under that standard, you should be fine.
Other objections? The city might object if you broke the law to obtain the pictures -- for example, you trespassed on private property, or you made use of information that you agreed to keep confidential. Outside of these concerns your first amendment rights should trump any city claims.

Wednesday, November 25, 2015

How Does Copyright Office Know Whether I've Published?

Dear Rich: I understand that the unpublished and published works have different fees and filing processes. But when I'm registering a not-yet-published-work, when is it OK to publish them on my website after filing? I heard it could take months for them to review/process the submissions. If I publish the work on my website a few weeks after mailing (or submitting) the copyright registration, how does the copyright office know that the work was indeed unpublished before I sent the application? Do they check the wayback machine or something? How do they verify that the publication date was indeed after the application has been submitted? Or should I simply file as a published work, since I'm planning to publish it soon? 
The Copyright Office doesn't verify whether publication has occurred; they take your word that the information you've provided is accurate. That's because you've promised (Section 8, Certification) that "the work identified in this application and that the statements made by me in this application are correct to the best of my knowledge." You can publish your work during the period that the application is being processed. However, the benefits of registration would not apply to changes made in the published version.
Should you wait? As a general rule, if you know that you will soon be publishing your work, it's better to wait until you've published before registering it. That's because the version that's published is typically the "final" version, that is the one that is unlikely to be modified. Registration within three months of publication guarantees certain rights. As always, we remind you that you have copyright in the work without registration. Don't operate under the mistaken impression that it's a race to the Copyright Office (or that you should mail yourself a copy) to claim priority over other similar works that are registered after that date.