Compendium of US Copyright Office Practices, II (1984)/200

by US Copyright Office

Chapter 200

COPYRIGHTABLE MATTER - IN GENERAL

Outline of Topics

201⁠Copyrightable matter: in general.
202⁠Original works of authorship.
202.01⁠Originality.
202.02⁠Authorship.
203⁠Fixation.
204⁠Compilations and derivative works.
204.01⁠Compilations defined.
204.02⁠Derivative works defined.
204.03⁠Standards for copyrightability of compilations and derivative works.
204.04⁠Status of compilations and derivative works unlawfully employing preexisting copyrighted material.
204.05⁠Musical arrangements made under the compulsory license for phonorecords.
204.06⁠Ephemeral recordings.
205⁠National origin.
206⁠Government works.
206.01⁠Edicts of government.
206.02⁠U.S. Government works.
206.03⁠Copyrightable government works.

CHAPTER 200

COPYRIGHTABLE MATTER - IN GENERAL

201

Copyrightable matter: in general. The clause of the U.S. Constitution cited in section 102 of Chap­ter 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 1, 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 author­ship include the following categories: (1) 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.

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 de­scribed, 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 extrapo­lation 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 trans­position of music from one key to another. In connection with transposition, see Chapter 400: COPYRIGHTABLE MATTER - WORKS OF THE PERFORMING ARTS AND SOUND RECORDINGS.

202.02(f)

Useful articles. No copyright can subsist in a "useful article as defined by the copy­right 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 cornmon 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 copyright­able. 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 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(l)

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 incorpo­rate 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 Copy­right 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 restric­tion and direct the applicant to the agency involved. Some examples of re­stricted 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).

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 abridg­ments, adaptations, arrangements, drama­tizations, 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. Govern­ment as part of such persons' 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: COPYRIGHTABLE MATTER - WORKS OF THE PERFORMING ARTS AND SOUND RECORDINGS.

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 (1) 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 (1) col­lective 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, condensation, or other form in which a work may be recast, transformed, or adapted. The law also states that a work consisting of editorial 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.

204.3

Standards for copyrightability of compilations and derivative works. The standards for the copyrightability of compilations and derivative works include the following requirements: (1) 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 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).

• 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 pro­tection 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 pre­existing work.

204.05

Musical arrangements made under the compul­sory license for phonorecords. Where phono­records 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 pro­vides 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 deri­vative 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 copy­right protection are registrable without regard to the nationality or domicile of the author. How­ever, the law provides that published works are subject to copyright protection and eligible for registration only under certain specified con­ditions 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 docu­ments 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.

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 person1s 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 govern­ment of the District of Columbia, as now constituted, are not considered U.S. Govern­ment 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 govern­ments of the "organized territories" under the jurisdiction of the u.S. Government are acceptable for registration under the rule 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 officer 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 addi­tion, the copyright law specifies that works first published by the united Nations or any of its specialized agencies, or by the Organi­zation of American States, are subject to copy­right protection. See 17 U.S.C. 104(b)(3): see also Chapter 1100: ELIGIBILITY.

[END OF CHAPTER 200]

[1984]