Compendium II: Copyright Office Practices

Chapter 200

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COPYRIGHTABLE MATTER - IN GENERAL

 

Outline of Topics

 

201 Copyrightable matter: in general.

202 Original works of authorship.

202.01 Originality.

202.02 Authorship.

203 Fixation.

204 Compilations and derivative works.

204.01 Compilations defined.

204.02 Derivative works defined.

204.03 Standards for copyrightability of compilations

and derivative works.

204.04 Status of compilations and derivative works

unlawfully employing preexisting copyrighted

material.

204.05 Musical arrangements made under the compulsory

license for phonorecords.

204.06 Ephemeral recordings.

 

205 National origin.

 

206 Government works.

 

206.01 Edicts of government.

206.02 U.S. Government works.

206.03 Copyrightable government works.

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[1984]

 

CHAPTER 200

COPYRIGHTABLE MATTER -IN GENERAL

201 Copyrightable matter: in general. The clause of

the U.S. Constitution cited in section 102 of Chap-

ter 100: BASIC POLICIES, as the basis for the copy-

right law empowers Congress to secure to authors

the exclusive right in their writings. Based on

this provision, the current copyright law, which

took full effect on January I, 1978, provides that

copyright protection subsists in original works of

authorship fixed in any tangible medium of expression

now known or later developed, from which they can

be perceived, reproduced, or otherwise communicated,

either directly or with the aid of a machine or

device; and the law specifies that works of author-

ship include the following categories: (I) literary

works; (2) musical works, including any accompanying

words; (3) dramatic works, including any accompanying

music; (4) pantomimes and choreographic works; (5)

pictorial, graphic, and sculptural works; (6) motion

pictures and other audiovisual works; and (7) sound

recordings. See 17 U.S.C. 102(a).

 

202 Original works of authorship. In order for a

work to be the subject matter of copyright under

the current law, it must be an original work of

authorship. Quality, aesthetic merit, ingenuity,

and uniqueness are not considered in determining

the copyrightability of a work.

 

202.01 Originality. A work must owe its origin to

the author in order for it to be original in

the copyright sense. The work must neither be

one in the public domain nor be copied from any

other work. The work need not be "novel," that

is, new to the world; to be original it need

only be new to the author, that is, not taken

from any other source.

 

202.02 Authorship. In order to be an original work

of "authorship," the work must contain at least

a certain minimum amount of original creative

expression.

200-1

 

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200-2

 

202 Original works of authorship. (cont'd)

 

202.02 Authorship. (cont'd)

 

202.02(a) De minimis. Works that lack even a certain

minimum amount of original authorship are not

copyrightable. Such works are often described

as "de minimis," in reference to the principle

embodied in the Latin maxim "de minimis non

curat lex."

 

202.02(b) Human author. The term "authorship" implies

that, for a work to be copyrightable, it must

owe its origin to a human being. Materials

produced solely by nature, by plants, or by

animals are not copyrightable.

 

202.02(c) Ideas. The copyright law specifies that

copyright protection does not extend to any

idea, procedure, process, system, method of

operation, concept, principle, or discovery,

regardless of the form in which it is de-

scribed, explained, illustrated, or embodied

in a work. See 17 U.S.C. 102(b).

 

202.02(d) Facts and events. A fact or event, as

distinguished from the manner in which it

is described in a particular work, is not

copyrightable.

 

202.02(e) Computations and the like. To be an

original work of authorship, the work must

not be a mere computation based upon a

concept or formula, or be the mere extrapo-

lation or application of an idea or system,

which would always produce substantially

the same result whenever done correctly by

anyone. For example, the computation of

interest based upon a particular rate is

not copyrightable, nor is the mere trans-

position of music from one key to another.

In connection with transposition, see

Chapter 400: COPYRIGHTABLE MATTER -WORKS

OF THE PERFORMING ARTS AND SOUND RECORDINGS.

 

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200-3

 

202 Original works of authorship. (cont'd)

 

202.02 Authorship. (cont'd)

 

202.02(f) Useful articles. No copyright can subsist

in a "useful article" as defined by the copy-

right law. However, elements incorporated

or embodied in a useful article that can be

identified separately from, and are capable

of existing independently of, the useful

article may be copyrightable. See Chapter

500: COPYRIGHTABLE MATTER -PICTORIAL,

GRAPHIC, AND SCULPTURAL WORKS.

 

202.02(g) Blank forms. Blank forms, such as time

cards, graph paper, account books, bank

checks, scorecards, address books, report

forms, order forms, and the like, which are

designed for recording information and do

not in themselves convey information or

contain other copyrightable matter are not

copyrightable. See 37 C.F.R. 202.1(c).

 

202.02(h) Information that is common property. Works

consisting entirely of information that is

common property containing no original author-

ship, such as, for example, standard calendars,

height and weight charts, tape measures and

rulers, schedules of sporting events, and

lists or tables taken from public documents

or other common sources are not copyright-

able. See 37 C.F.R. 202.1(d).

 

202.02(i) Words and short phrases. Words and short

phrases such as names, titles, and slogans

are not copyrightable. See 37 C.F.R.

202.01(a).

 

202.02(j) Familiar symbols, typeface, and design of

printed material. Familiar symbols or

designs, and mere variations of typographic

ornamentation, lettering, or coloring, are

 

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200-4

 

202 Original works of authorship. (cont'd)

 

202.02 Authorship. (cont'd)

 

202.02(j) Familiar symbols, t .n

of printed material. (cont’d)

 

not copyrightable. See 37 C.F.R. 202.1(a).

Typeface is not copyrightable, nor is the

design, format, or layout of books and

other printed material. See Chapter 300:

COPYRIGHTABLE MATTER -NONDRAMATIC LITERARY

WORKS.

 

202.02(k) Listings. The mere listing of ingredients

or contents is not copyrightable. See 37

C.F.R. 202.1(a).

 

202.02(1) Characters. The copyright law does not

provide for the copyright registration of

characters as such. However, original works

of authorship describing, depicting, or

.embodying a character are registrable if

otherwise in order.

 

202.02(m) Use of protected characters, names, and

slogans. Occasionally, works incorpo-

rate names, titles, or slogans whose

utilization is subject to restrictions

by other laws. As these restrictions

have nothing to do with copyright, the

incorporation of these elements does not

prevent registration. Where the Copy-

right Office is aware that a use of

certain elements within a work may be in

violation of existing law, it may inform

the applicant of the possible restric-

tion and direct the applicant to the

agency involved. Some examples of re-

stricted names and characters are:

"Olympic," "Olympiad," (36 U.S.C. 380):

"Woodsy Owl" (18 U.S.C. 711a): and

"Smokey Bear" (18 U.S.C. 711).

 

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200-5

 

202 Original works of authorship. (cont'd)

 

202.03 Works in the public domain. Works in the

public domain in the United States cannot

be the subject of U.S. copyright protection.

Since such works may be copied and used by

anyone insofar as the U.S. copyright law

is concerned, they may be freely combined

with new matter or otherwise incorporated

or embodied in compilations or in abridg-

ments, adaptations, arrangements, drama-

tizations, translations, or other derivative

forms. If the new matter contains sufficient

original authorship to support a copyright,

registration may be based on such new matter.

However, in any such case, copyright extends

only to the new material and does not imply

any exclusive right in the public domain

material. Works in the public domain

include those whose once valid U.S. copyright

has expired and works otherwise dedicated to

the public either voluntarily or by operation

of law. Also considered part of the public

domain are edicts of government, which are

uncopyrightable for reasons of public policy:

see section 206.01 below. In addition, works

of the U.S. Government, that is, works prepared

by officers or employees of the U.S. Govern-

ment as part of such personal official duties

are not copyrightable: see section 206.02

below.

 

203 Fixation. In order to be subject to copyright

registration, a work must be fixed in a tangible

medium of expression by or under the authority of

the author. A work consisting of sounds, images,

or both, that are being transmitted, is "fixed" if

a fixation of the work is being made simultaneously

with its transmission. See 17 U.S.C. 101 and 102.

Special problems with respect to the fixation of

sound recordings are treated in Chapter 400: copy-

RIGHTABLE MATTER -WORKS OF THE PERFORMING ARTS

AND SOUND RECORDINGS.

 

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200-6

 

204 Compilations and derivative works. The copyright

law specifies that the subject matter of copyright

includes compilations and derivative works but that

copyright for a work employing preexisting material

in which copyright subsists does not extend to any

part of the work in which such material has been

used unlawfully. See 17 U.S.C. 103(a). The law

also specifies (I) that copyright in a compilation

or derivative work extends only to the material

contributed by the author of such work and does not

imply any exclusive right in the preexisting

material and (2) that the copyright in such work is

independent of, and does not affect or enlarge the

scope, duration, or subsistence of, any copyright

in the preexisting material. See 17 U.S.C. 103(b).

 

204.01 Compilations defined. The copyright law

defines a "compilation" as a work formed by

the collection and assembling of preexisting

materials or of data that are selected,

coordinated, or arranged in such a way that

the resulting work as a whole constitutes an

original work of authorship. The law also

..states that the term "compilation" includes

"collective works," which are works, such as

a periodical issue, anthology, or encyclopedia,

in which a number of contributions, constituting

separate and independent works in themselves,

are assembled into a collective whole. Hence,

in effect, compilations are either (I) col-

lective works, or (2) other compilations, the

latter being works consisting of the collection

and assembling of preexisting materials or data

other than separate and independent works. See

17 U.S.C. 101.

 

204.02 Derivative works defined. The copyright law

defines a "derivative work" as a work based

upon one or more preexisting works, such as a

translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound

recording, art reproduction, abridgment, con-

densation, or other form in which a work may

be recast, transformed, or adapted. The law

also states that a work consisting of editorial

 

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200-7

 

204 Compilations and derivative works. (cont'd)

 

204.02 Derivative works defined. (cont'd)

 

revisions, annotations, elaborations, or other

modifications which, as a whole, represent an

original work of authorship, is a derivative

work. See 17 U.S.C. 101.

 

204.03 Standards for copyrightability of compilations

and derivative works. The standards for the

copyrightability of compilations and derivative

works include the following requirements: (I)

they must be original works of authorship, and

(2) they must comply with the other provisions

of the law.

 

204.04 Status of compilations and derivative works

unlawfully employing preexisting copyrighted

material. Copyright protection for a work

employing preexisting material in which copy-

right subsists does not extend to any part of

the work in which such material has been used

unlawfully. See 17 U.S.C. 103(a).

 

- This means that where a work is based on a

preexisting work, without authorization of

the copyright owner and unlawfully, the new

material may be subject to copyright pro-

tection only to the extent that it can be

separated from the preexisting work.

 

- Where the new matter (such as certain

editorial revisions, translations, and

musical arrangements) is inextricably

integrated with the preexisting work,

without authorization of the copyright

owner, registration for the new matter

cannot be made.

 

- However, where the new matter (such as new

lyrics set to an existing melody) is capable

of existing separately, registration may be

possible, even though the use may be an

infringement of the copyright in the pre-

existing work.

 

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200-8

204 Compilations and derivative works. (cont'd)

 

204.05 Musical arrangements made under the compul-

sory license for phonorecords. Where phono-

records of nondramatic musical works are made

under the compulsory license provisions of 17

U.S.C. 115, a new arrangement of the musical

work may be made without the consent of the

copyright owner of the preexisting work.

However, such arrangement is not subject to

copyright protection as a derivative work

without the express consent of the copyright

owner of the preexisting work. See Chapter

400: COPYRIGHTABLE MATTER -WORKS OF THE

PERFORMING ARTS AND SOUND RECORDINGS.

 

204.06 Ephemeral recordings. The copyright law pro-

vides that ephemeral recordings may lawfully be

made of certain copyrighted works without the

authority of the owners of copyright. However,

transmission programs embodying such works are

not subject to copyright protection as deri-

vative works without the express consent of

..the owners of copyright in the preexisting

works. See 17 U.S.C. 112.

 

205 National origin. The copyright law provides that

all unpublished works otherwise subject to copy-

right protection are registrable without regard to

the nationality or domicile of the author. How-

ever, the law provides that published works are

subject to copyright protection and eligible for

registration only under certain specified con-

ditions relating to their national origin. See

Chapter 1100: ELIGIBILITY.

 

206 Government works. Certain government works are

subject to special rules.

 

206.01 Edicts of government. Edicts of government,

such as judicial opinions, administrative

rulings, legislative enactments, public

ordinances, and similar official legal docu-

ments are not copyrightable for reasons of

public policy. This applies to such works

whether they are Federal, State, or local as

well as to those of foreign governments.

 

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200-9

 

206 Government works.

 

206.02 U.S. Government works. The copyright law

provides that works of the u.s. Government,

defined in the law as works prepared by an

officer or employee of the u.s. Government

as part of that person's official duties,

are not copyrightable. This provision

applies to such works whether they are edicts

of government or otherwise. However, the fact

that a copyright may have been transferred to

the U.S. Government is not determinative of its

status. U.S.C. 101 and 105. Similarly, the

fact that the work has been printed by the U.S.

Government does not determine its copyright

status.

 

206.02(a) Standard Reference Data Act. Under the

Standard Reference Data Act, 15 U.S.C.

290e, the Secretary of Commerce may secure

copyright on behalf of the United States

as author or proprietor of any standard

reference data that the Secretary prepares

or makes available under the Act.

 

206.02(b) U.S. Postal Service. Works of the U.S.

Postal Service, as now constituted, are not

considered U.S. Government works.

 

206.02(c) District of Columbia. Works of the govern-

ment of the District of Columbia, as now

constituted, are not considered U.S. Govern-

ment works.

 

206.02(d) Commonwealth of Puerto Rico. Works of the

government of Puerto Rico are not considered

to be U.S. Government works.

 

206.02(e) Territorial areas under the jurisdiction of

the U.S. Government. Works of the govern-

ments of the "organized territories" under

the jurisdiction of the U.S. Government are

acceptable for registration under the rule

 

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200-10

 

206 Government works. (cont'd)

 

206.02 U.S. Government works. (cont'd)

 

206.02(e) Territorial areas under the jurisdiction of

the u.s. Government. (cont'd)

 

of doubt. Works of the governments of other

territorial areas under the jurisdiction of

the u.s. Government are considered to be

u.s. Government works. See Chapter 1100:

ELIGIBILITY.

 

206.03 Copyrightable government works. Works (other

than edicts of government prepared by officers

or employees of any government (except the U.S.

Government) including State, local, or foreign

governments, are subject to registration if

they are otherwise copyrightable. In addi-

tion, the copyright law specifies that works

first published by the United Nations or any

of its specialized agencies, or by the Organi-

zation of American States, are subject to copy-

right protection. See 17 U.S.C. 104(b)(3): see

also Chapter 1100: ELIGIBILITY.

 

[END OF CHAPTER 200]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1984]