Chapter 200
_________________________________
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
[1984]
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.
[1984]
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
[1984]
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).
[1984]
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.
[1984]
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
[1984]
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.
[1984]
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.
[1984]
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
[1984]
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]
