Draft third edition of USA copyright office compendium – copyrightable authorship

The Copyright Act protects “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.” In determining whether a work is copyrightable, the Office analyzes questions such as:

  • Is the work eligible for copyright protection in the United States?
  • Has the work been fixed in a tangible medium of expression?
  • Was the work created by a human author?
  • Does the work constitute copyrightable subject matter?
  • Is the work sufficiently original?
    • – Was the work independently created?
    • – Does the work possess at least some minimal degree of creativity?

If the answer to all of these questions is “yes,” the work is copyrightable and the claim may be registered, as long as there are no other issues in the registration materials that raise questions concerning the claim and as long as the other legal and formal requirements have been met. A work of authorship may be deemed copyrightable, provided that it has been “fixed in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.”

Specifically, the work must be fixed in a copy or phonorecord “by or under the authority of the author” and the work must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The terms “copy” and “phonorecord” are very broad. They cover “all of the material objects in which copyrightable works are capable of being fixed”.

  • Copies are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,” including the material object “in which the work is first fixed.”
  • Phonorecords are “material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,” including “the material object in which the sounds are first fixed.”

Most works are fixed by their very nature, such as an article printed on paper, a song recorded in a digital audio file, a sculpture rendered in bronze, a screenplay saved in a data file, or an audiovisual work captured on film. Nevertheless, some works of authorship may not satisfy the fixation requirement, such as an improvisational speech, sketch, dance, or other performance that is not recorded in a tangible medium of expression. Other works may be temporarily embodied in a tangible form, but may not be sufficiently permanent or stable to warrant copyright protection, such as “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television,… or captured momentarily in the memory of a computer.”

The Office may communicate with the applicant or may refuse registration if the work or the medium of expression only exists for a transitory period of time, if the work or the medium is constantly changing, or if the medium does not allow the specific elements of the work to be perceived, reproduced, or otherwise communicated in a consistent and uniform manner. The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work.

Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” “To qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” The copyright law protects “those components of a work that are original to the author,” but “originality” does not require “novelty.” A work may satisfy the independent creation requirement “even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” For example, if two authors created works that are similar or even identical, each work could be registered provided that the authors did not copy expression from each other.

An author’s expression does not need to “be presented in an innovative or surprising way,” but it “cannot be so mechanical or routine as to require no creativity whatsoever.” A work that it is “entirely typical,” “garden-variety,” or “devoid of even the slightest traces of creativity” does not satisfy the originality requirement. A work “does not possess the minimal creative spark required by the Copyright Act” if the author’s expression is “obvious” or “practically inevitable.”

As a general rule, the registration specialist will not search the U.S. Copyright Office’s records to determine if the work has been registered before, unless there is conflicting information in the registration materials or other sources of information that are known by the Office or the general public. The specialist will not compare the deposit copy(ies) with other works that have been previously registered with the Office. Likewise, the specialist generally will not compare the deposit copy(ies) with other works to determine whether the applicant is attempting to register a work that is substantially similar to another work of authorship, unless the applicant appears to be asserting a claim in a work that is unusually similar to another work of authorship that is known to the specialist.

When examining a work for original authorship, the U.S. Copyright Office will not consider the author’s inspiration for the work, creative intent, or intended meaning. The fact that creative thought may take place in the mind of the person who created a work (or a person viewing or listening to the work) has no bearing on the issue of originality unless the work objectively demonstrates original authorship. Mental processes do not themselves provide an objective basis for evaluating creativity. The U.S. Copyright Office will not consider the author’s creative skill and experience when evaluating a work for copyrightable authorship, because the author’s personal or professional history is irrelevant to the determination of copyrightability.

When examining a work for original authorship, the U.S. Copyright Office will focus on the appearance or sound of the work that the author created but will not consider the amount of time, effort, or expense required to create the work. As a general rule, the Office will not consider possible design alternatives that the author may have considered when he or she created the work. Likewise, the Office will not consider potential variations in the use of the work, such as the fact that a work could be presented in a different color, in a different size, or with a different orientation. The U.S. Copyright Office will not consider the marketability or commercial success of the work, because these issues are irrelevant to the originality analysis.