COPYRIGHTABLE MATTER: PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS
Outline of Topics
501Pictorial, graphic, and sculptural works: in general. 501.01Forms of embodiment. 502Works of art. 503Registration requirements for drawings, paintings, other pictorial works, and sculpture. 503.01Style and artistic merit. 503.02Copyrightable pictorial, graphic, and sculptural expression. 503.03Works not capable of supporting a copyright claim. 504Registration requirements for two-dimensional useful articles, three-dimensional works of artistic craftsmanship, and models. 504.01Material not subject to registration. 504.02Examples. 505Registration requirements for the shapes of three dimensional useful articles. 505.01Definition of useful article. 505.02Separability test. 505.03Separability test: conceptual basis. 505.04Separability test: physical basis. 505.05Separability test: factors not relevant in determining registrability. 506Prints. 506.01Registration requirements. 506.02Pictorial or graphic material. 506.03Uncopyrightable elements.
507Reproductions of pictorial, graphic, or sculptural works. 507.01Registration requirements. 507.02Derivative works. 507.03Reproductions not capable of supporting a registration. 508Photographs, holograms, and individual slides. 508.01Registration requirements. 508.02Uncopyrightable works. 509Maps. 509.01Registration requirements. 509.02Compilations and derivative works. 509.03Elements not capable of supporting a copyright. 510Scientific works: architectural and technical drawings and models. 510.01Registration requirements. 510.02Uncopyrightable works. 510.03Ideas, processes, or systems. 510.04Subjects depicted.
COPYRIGHTABLE MATTER: PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS
Pictorial, graphic, and sculptural works: in general. The copyright law defines "pictorial, graphic, and sculptural works" as including two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned: the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. See 17 U.S.C. 101.
Forms of embodiment. Registrable pictorial, graphic, or sculptural authorship may be embodied in a wide variety of forms. These include works of fine, graphic, and applied art; prints: photographs, holograms, and individual slides; art reproductions: maps, globes, and charts: architectural and technical drawings: diagrams, patterns, models, and the like: and advertisements. Motion pictures, film strips, slide presentations, and other audiovisual works are not "pictorial works" for the purpose of registration.
Works of art. These include works of the fine arts, such as paintings, other pictorial works, and sculpture, as well as works of artistic craftsmanship, such as jewelry, glassware, ceramic figurines, table service patterns, wall plaques, grave markers, toys, dolls, stuffed toy animals, models, and the separable artistic features of two-dimensional and three-dimensional useful articles.
Registration requirements for drawings, paintings, other pictorial works, and sculpture. Generally, in order to be entitled to registration, such works must contain original pictorial, graphic, or sculptural authorship. If the work consists entirely of uncopyrightable elements, registration is not authorized. On the other hand, the mere presence of uncopyrightable elements in a work will not prevent registration on the basis of features that are copyrightable under the statute. Thus a design, otherwise original, may be registrable even though it incorporates uncopyrightable standard forms, such as circles and squares.
Style and artistic merit. The registrability of a work of the traditional fine arts is not affected by the style of the work or the form utilized by the artist. Thus, the form of the work can be representational or abstract, naturalistic or stylized. Likewise, the registrability of a work does not depend upon artistic merit or aesthetic value. For example, a child's drawing may exhibit a very low level of artistic merit and yet be entitled to registration as a pictorial work.
Copyrightable pictorial, graphic, and sculptural expression. A claim to copyright in a work of the traditional fine arts will be registrable if the work contains at least a certain minimum amount of pictorial, graphic, or sculptural expression owing its origin to the author. If the expression is pictorial, the authorship could be expressed, for example, in the linear contours of a drawing, the assemblage of diverse fragments forming a collage, or the arrangement and juxtaposition of pieces of colored stone in a mosaic portrait. If the expression is sculptural, the authorship could, for example, be expressed by means of carving, cutting, molding, casting, shaping, or otherwise processing the material into a three-dimensional work of sculpture.
Minimal standards: pictorial or graphic material. A certain minimal amount of original creative authorship is essential for registration in Class VA or in any other class. Copyrightability depends upon the presence of creative expression in a work, and not upon aesthetic merit, commercial appeal, or symbolic value. Thus, registration cannot be based upon the simplicity of standard ornamentation such as chevron stripes, the attractiveness of a con ventional fleur-de-lys design, or the religious significance of a plain, ordinary cross. Similarly, it is not possible to copyright common geometric figures or shapes such as the hexagon or the ellipse, a standard symbol such as an arrow or a five-pointed star. Likewise, mere coloration cannot support a copyright even though it may enhance the aesthetic appeal or commercial value of a work. For example, it is not possible to copyright a new version of a textile design merely because the colors of red and blue appearing in the design have been replaced by green and yellow, respectively. The same is true of a simple combination of a few standard symbols such as a circle, a star, and a triangle, with minor linear or spatial variations.
An unpublished design for textile fabric is submitted for registration in Class VA. The design consists of a standard unembellished character of Chinese calligraphy painted upon horizontally striated grass cloth. Practice: Registration is not authorized in this case. Like typography, calligraphy is not copyrightable as such, not withstanding the effect achieved by calligraphic brush strokes across a striated surface.
An applicant for registration has developed a novelty item consisting of transparently clear plastic sheets bonded together around their periphery, and having a small amount of colored liquid petroleum in the air space between the laminated sheets. Any slight pressure upon the external surface results in the formation of undulating patterns and shapes, no two of which are ever identical. Practice: Since the specific outlines and contours of the patterns and shapes formed by the liquid petroleum do not owe their origin to a human agent, it is not possible to claim copyright in such patterns and shapes. The novelty of the idea embodied in the work and the effects achieved by the action of the petroleum under pressure like wise do not warrant registration.
Minimal standards: sculptural material. The requisite minimal amount of original sculptural authorship necessary for registration in Class VA does not depend upon the aesthetic merit, commercial appeal, or symbolic value of a work. Copyrightability is based upon the creative expression of the author, that is, the manner or way in which the material is formed or fashioned. Thus, registration cannot be based upon standard designs which lack originality, such as common architecture moldings, or the volute used to decorate the capitals of Ionic and Corinthian columns. Similarly, it is not possible to copyright common geometric figures or shapes in three dimensional form, such as the cone, cube, or sphere. The mere fact that a work of sculpture embodies uncopyrightable elements, such as standard forms of ornamentation or embellishment, will not prevent registration. However, the creative expression capable of supporting copyright must consist of something more than the mere bringing together of two or three standard forms or shapes with minor linear or spatial variations. In no event can registration rest solely upon the fact that an idea, method of operation, plan, or system has been successfully communicated in three-dimensional form. In every case, it is the creative expression of the author which must be able to stand alone as an independent work apart from the general idea which informs it.
Registration in Class VA is requested for a design or model of a table lamp. Cast in plaster of Paris, the design features the head of a horse mounted on an iron horseshoe with toe and heel calks which supports the entire fixture. Electrical wiring is concealed within the plaster casting. Practice: If the head of the horse is original, registration may be considered on that basis. However, the general idea of embellishing a lighting fixture with a work of art is not copyrightable. The same is true of the decorative idea of using a horseshoe as support for a lamp base, regardless of the pleasing effect thereby achieved.
A toy manufacturer conceives a novel idea for a toy consisting of multicolored geometrical spheres, cubes, and cylinders of varying sizes. All of these parts or pieces are magnetized, and will adhere to one another when placed in close proximity. Thus, it is possible to construct an indefinite variety of shapes and figures by means of the magnetized parts or pieces. The manufacturer desires to protect the three-dimensional aspects of the toy before publication occurs. He applies to the Copyright Office for registration of a design for an unpublished sculptural work of art. His application Form VA is accompanied by one complete set of magnetized spheres, cubes, and cylinders arranged in a plain box according to size and color. Practice: We will refuse a registration in Class VA based solely upon the unassembled toy, even though its component parts or pieces are potentially capable of being arranged in copyrightable shapes and forms. The general idea of the toy is uncopyrightable, regardless of its novelty or uniqueness.
A work described as a "mobile" consists of nine pieces of translucent colored glass each of which is suspended by wire from an over head rack designed to rotate about a pivot in a horizontal plane. The suspension wires vary in length and no two pieces of glass share the same shape or outline. Registration is sought in Class VA on the basis of the overall effect produced by the play of light upon the suspended glass components of a work which the applicant describes as "three-dimensional." No copyrightable authorship is claimed in the design of the individual pieces of glass. Practice: Registration based upon the cumulative effect produced by the component members of the mobile will be refused. If these members had contained copyrightable authorship, registration could have been considered on the basis of the two-dimensional design features displayed by the pieces of glass.
Works not capable of supporting a copyright claim. Claims to copyright in the following works cannot be registered in the Copyright Office:
Works not originated by a human author. In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
Works containing insufficient expression. No registration is possible where the work consists solely of elements which are incapable of supporting a copyright claim. Uncopyrightable elements include common geometric figures or symbols, such as a hexagon, an arrow, or a five-pointed star, as pointed out in section S03.02(a) above.
Ideas and concepts. Mere ideas and concepts cannot support a copyright claim. In order to be registrable, a work must contain original copyrightable expression. Thus, for example, neither the idea of folding a five-pointed star in a manner that enables it to stand upright, nor the star so folded is registrable.
Registration requirements for two-dimensional useful articles, three-dimensional works of artistic craftsmanship, and models. The registrability of two-dimensional useful articles is determined by the presence of at least a certain minimum amount of pictorial or graphic authorship. For three-dimensional works of artistic craftsmanship falling outside the definition of useful articles, such as jewelry, toys, and wall plaques, the authorship may be either sculptural or pictorial in nature, such as carving, cutting, molding, casting, shaping the work, arranging the elements into an original combination, or decorating the work with pictorial matter. Three-dimensional works of artistic craftsmanship are registrable either in assembled form, or in unassembled component pieces, as for example, an unassembled model airplane.
Material not subject to copyright. Standard elements, as such, are not reg1strable. Thus, registration cannot be made for glassware devoid of copyrightable ornamentation, or for fabric designs consisting only of polka dots. Moreover, the mechanical or utilitarian aspects of a three-dimensional work of applied art are not subject to copyright protection. Hence, the serrated edge of a knife could not be the basis of a copyright registration.
Examples. The following are examples of the principles governing the registrability of such works:
A textile design consisting of nothing more than polka dots is not registrable. However, a representational image produced by the use of dots is registrable.
A jeweled pin consisting of three parallel rows of stones is not registrable, while a pin consisting of a sculpted bee is registrable.
A copyright claim in an original stuffed toy lion is registrable, while a plain red cushion shaped as a five-pointed star is not.
Registration requirements for the shapes of three-dimensional useful articles. Under the definition of "pictorial, graphic, and sculptural works" in the copyright law, the "design of a useful article" is copyrightable only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. See 17 U.S.C. 101.
Definition of useful article. A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article." 17 U.S.C. 101. Examples of useful articles include automobiles, boats, household appliances, furniture, work tools, garments, and the like.
Separability test. Registration of claims to copyright in three-dimensional useful articles can be considered only on the basis of separately identifiable pictorial, graphic, or sculptural features which are capable of independent existence apart from the shape of the useful article. Determination of separability may be made on either a conceptual or physical basis.
Separability test: conceptual basis. Conceptual separability means that the pictorial, graphic, or sculptural features, while physically inseparable by ordinary means from the utilitarian item, are nevertheless clearly recognizable as a pictorial, graphic, or sculptural work which can be visualized on paper, for example, or as free-standing sculpture, as another example, independent of the shape of the useful article, i.e., the artistic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. The artistic features and the useful article could both exist side by side and be perceived as fully realized, separate works—one an artistic work and the other a useful article. Thus, carving on the back of a chair, or pictorial matter engraved on a glass vase, could be considered for registration. The test of conceptual separability, however, is not met by merely
analogizing the general shape of a useful article to works of modern sculpture, since the alleged "artistic features" and the useful article cannot be perceived as having separate, independent existences. The shape of the alleged "artistic features" and of the useful article are one and the same, or differ in minor ways; any differences are de minimis. The mere fact that certain features are nonfunctional or could have been designed differently is irrelevant under the statutory definition of pictorial, graphic, and sculptural works. Thus, the fact that a lighting fixture might resemble abstract sculpture would not transform the lighting fixture into a copyrightable work.
Separability test: physical basis. The physical separability test derives from the principle that a copyrightable work of sculpture which is later incorporated into a useful article retains its copyright protection. Examples of works meeting the physical separability test include a sculptured lamp base of a Balinese dancer, or a pencil sharpener shaped like an antique car. However, since the overall shape of a useful article is not copyrightable, the test of physical separability is not met by the mere fact that the housing of a useful article is detachable from the working parts of the article.
Separability test: factors not relevant in determining registrability. In applying the test of separability, the following are not relevant considerations: 1) the aesthetic value of the design, 2) the fact that the shape could be designed differently, or 3) the amount of work which went into the
making of the design. Thus, the mere fact that a famous designer produces a uniquely shaped food processor does not render the design of the food processor copyrightable.
Prints. "Prints" include a wide variety of pictorial prints and illustrations produced by means of lithography, photoengraving or other printing processes, including reproductions of representational and abstract designs and color reproductions of photographic prints. Examples of such works include greeting cards, picture postcards, posters, decals, stationery, table place mats, advertisements, various kinds of wrappers, billboards, shopping bags, and labels.
Registration requirements. In order to be entitled to registration as work must contain at least minimum amount of original graphic authorship.
Pictorial or graphic material. Registration is appropriate for original pictorial or graphic material, such as illustrations and representational or abstract design, as well as photographs reproduced in color by lithography, photoengraving, or other printing processes. Although the copyrightability of such material does not depend upon artistic merit or aesthetic value, the material must contain at least a certain minimum amount of original pictorial or graphic expression to be eligible for registration.
Uncopyrightable elements. In determining the registrability of a print, the copyright claim cannot be based solely upon mere variations of typographic ornamentation, lettering, or coloring. Likewise, the arrangement of type on a printed page cannot support a copyright claim. However,
if the type is so arranged as to produce a pictorial representation, the resulting image is registrable. Thus, an advertise ment which utilized lettering to achieve a pictorial representation of a person can be registered.
Reproductions of pictorial, graphic, or sculptural works. Material comprising "reproductions of pictorial, graphic, or sculptural works" include reproductions of existing works of art. Examples of such reproductions are photoengravings, collo-types, silk-screen prints, mezzotints, and three dimensional reproductions of sculpture.
Registration requirements. In order to be registrable, an art reproduction must contain at least a certain minimum amount of original
authorship. This authorship may consist of drawing, lithography, photoengraving, etching, original sculpturing or molding, and the like. For example, a reproduction of Rodin's "Hand of God" achieved through sculpturing a miniature version of the original is registrable.
Derivative works. Art reproductions are derivative works because, by their nature, they are based on preexisting works. Accordingly, a statement identifying the preexisting artistic work and indicating the nature of the authorship in the reproduction should be given in the appropriate spaces on the application form. However, in those cases where the author and claimant of the reproduction are also the author and claimant of the original work of art that has been reproduced, and the original work has not been previously registered or published, registration should be made as an original pictorial, graphic, or sculptural work.
Reproductions not capable of supporting a registration. Claims to copyright in the following works cannot be registered in the Copyright Office:
Underlying work not a pictorial, graphic, or sculptural work. Where the underlying work is not a pictorial, graphic, or sculptural work, no registration is possible on the basis of reproduction authorship. For example, a lithographic reproduction of a letter of the alphabet is not registrable.
Mechanical or photomechanical processes. Reproductions made through the mere operation of mechanical or photomechanical processes are not registrable. For example, a photocopy of an original pen and ink drawing is not registrable as an art reproduction.
Photographs, holograms, and individual slides. Works considered for registration on the basis of photographic authorship include still photographic prints, holograms, and individual slides.
Registration requirements. To be entitled to copyright registration, a photograph, hologram, or slide must contain at least a certain minimum amount of original expression. Generally, original photographic or holographic authorship depends on the variety and number of the elements involved in the composition of the photograph or hologram. However, the nature of the thing depicted or the subject of the photograph or hologram, as distinguished from its composition or arrangement, is not regarded as a copyrightable element. original photographic composition capable of supporting registration may include such elements as time and light exposure, camera angle or perspective achieved, deployment of light and shadow from natural or artificial light sources, and the arrangement or disposition of persons, scenery, or other subjects depicted in the photograph.
In the case of holography, original authorship depends largely upon the selection, arrangement, and disposition of scene and object.
Uncopyrightable works. Where images are produced through the operation of mechanical or photomechanical processes with no appreciable element of artistic expression, the work is not registrable.
A microfilm merely reproducing public domain textual matter is not registrable.
The photocopy of a public domain pictorial work is not registrable.
Maps. The term "map" refers to cartographic representations of area. Common examples include terrestrial maps and atlases, marine charts, celestial maps, and such three-dimensional works as globes and relief models.
Registration requirements. To be registrable, a map must contain at least a certain minimum amount of original cartographic material. Examples of original cartographic material include drawings or pictorial representations of area based on original surveying or cartographic field work and compilations resulting from the original selection and arrangement of essentially cartographic features, such as roads, lakes or rivers, cities, political or geographic boundaries, and the like.
Compilations and derivative works. The preparation of many maps involves the use of previously published source material to a significant degree, and the copyrightable
authorship, therefore, is generally based upon elements such as additional compilation and drawing. Additional authorship of this kind may include cartographic representations such as new roads, historical landmarks, or zoning boundaries. Where any substantial portion of the work submitted for registration includes previously published or registered material, or material that is in the public domain, statements describing both the preexisting material as well as the new copyrightable authorship should be given at the appropriate spaces on the application form. See Chapter 700: APPLICATIONS AND FEES.
Elements not capable of supporting a copyright. A mere reprint of public domain or previously published material is not registrable. Likewise, a claim based upon an obvious selection and arrangement of materials is not registrable. For example, an outline map of the United States containing nothing more than the names of the state capitals does not contain the necessary authorship to support registration.
Scientific works: architectural and technical drawings and models. Material comprising scientific works includes architectural blueprints, mechanical drawings, engineering diagrams, astronomical charts, anatomical models, scientific and architectural models, and similar works.
Registration requirements. In order to be entitled to registration, architectural and technical drawings must contain at least a certain minimum amount of original graphic or pictorial matter. A scientific or architectural model must contain at least a certain minimum amount of original sculptural material.
Uncopyrightable works. Claims to copyright in the following works cannot be registered in the Copyright Office:
Devices. Devices and similar articles, designed for computing and measuring, cannot be registered. Common examples of such works include slide rules, wheel dials, and nomograms that contain insufficient original literary or pictorial material. The printed material of which a device usually consists (lines, numbers, symbols, calibrations, and their arrangement) cannot be copyrighted, because this material is necessarily dictated by the uncopyrightable idea, principle, formula, or standard of measurement involved.
Blank forms. Blank forms and similar works which are designed for recording information and do not in themselves convey information, cannot be registered. Common examples include: forms calibrated for use in conjunction with a machine or device, report forms, graph paper, account
books, scorecards, order forms, vouchers, and the like. See 37 C.F.R. 202.l(c).
Ideas, processes, or systems. Copyright protection does not extend to ideas, processes, or systems. Scientific or technical works are registrable only if they contain the requisite original copyrightable expression. The following are not protectible by copyright and do not offer a basis for copyright registration: 1) ideas or procedures for doing, making, or building things; 2) scientific or technical discoveries or methods; 3) business operations or procedures; 4) mathematical principles; or 5) any other concept, process, method of operation, or plan of action. See 17 U.S.C. 102(b).
Subjects depicted. Where registration is sought for a scientific or technical work, the application should describe only the authorship contained in the work and not bear any statements which suggest that registration extends to the subjects depicted. Thus, the application for registration of a claim to copyright in an architectural drawing of a building should contain no statements which imply that the registration extends to the building. See 17 U.S.C. 113(b).