Mockingbird Press, LLC
been independently created by the author, “as opposed to copied from other works.” Id. Second, the work must possess sufficient creativity. Id. Only a modicum of creativity is necessary, but the Supreme Court has held that some works fail to meet even this low threshold. Id. The original authorship in a compilation may be found in selecting, coordinating, or arranging material in a sufficiently original way. Id. at 358; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 312.2 (3d ed. 2021) (“Compendium (Third)”).
The Work consists of three public domain writings, all containing images and text originally present in the public domain works. Mockingbird Press alleges that the copyrightable authorship is demonstrated by selecting from a large, diverse pool of material and arranging the three works in an original way. The Board disagrees. Selecting, coordinating, and arranging three works does not demonstrate sufficient creativity to be copyrightable. “The Office generally will not register a compilation containing only two or three elements, because the selection is necessarily de minimis.” Compendium (Third) § 312.2; see also H.R. Rep. No. 94-1476, at 122 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5737 (stating that a work does not qualify as a collective work “where relatively few separate elements have been brought together,” as in the case of “a composition consisting of words and music, a work published with illustrations or front matter, or three one-act plays”).
Mockingbird Press has not demonstrated that an exception to this general rule should apply to the Work. It is not enough that the three writings were selected from a large pool. The coordination and arrangement is de minimis and the works are merely reproduced in a standard way, which redistributes the three public domain works together in one package.
Mockingbird Press further contends that the selection of higher quality versions of the original images supports the originality of the compilation. However, merely selecting a higher quality image is akin to recasting a work in a new medium or format, which does not contribute copyrightable authorship. Compendium (Third) § 311.2. Further, no creativity can be found in the coordination and arrangement, as the images appear to be assigned to the respective sections that they illustrate, which is to be expected.
IV. CONCLUSION
For the reasons stated herein, the Review Board of the United States Copyright Office affirms the refusal to register the copyright claim in the Work. Pursuant to 37 C.F.R. § 202.5(g), this decision constitutes final agency action in this matter.
A personal signature appears here
U.S. Copyright Office Review Board
Suzanne V. Wilson, General Counsel and Associate Register of Copyrights
Maria Strong, Associate Register of Copyrights and Director of Policy and International Affairs
Jordana Rubel, Assistant General Counsel
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