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 Chapter 300 
Copyrightable Authorship: 
What Can Be Registered 
     
What This Chapter Covers .............................................................................................................................................. 4 
The Legal Framework ...................................................................................................................................................... 4 
Copyrightability Is Determined Based on U.S. Copyright Law ......................................................................... 5 
Eligibility ............................................................................................................................................................................... 5 
The Fixation Requirement.............................................................................................................................................. 6 
The Human Authorship Requirement ....................................................................................................................... 7 
Copyrightable Subject Matter ....................................................................................................................................... 7 
The Originality Requirement ........................................................................................................................................ 8 
1  Independent Creation ...................................................................................................................................................... 8 
2  Creativity ............................................................................................................................................................................... 9 
Examining a Work for Copyrightable Authorship................................................................................................. 9 
1  Prior Works and Prior Registrations ...................................................................................................................... 10 
2  Facts Stated in the Application .................................................................................................................................. 10 
3  No Precedential Value ................................................................................................................................................... 11 
Factors That Will Not Be Considered in the Examination of Originality ................................................... 11 
1  Novelty or Ingenuity ...................................................................................................................................................... 11 
2  Aesthetic Value, Artistic Merit, and Intrinsic Quality........................................................................................ 11 
3  Symbolic Meaning and Impression .......................................................................................................................... 12 
4  Look and Feel ................................................................................................................................................................... 12 
5  The Author’s Inspiration and Intent ........................................................................................................................ 12 
6  The Author’s Skill, Experience, and Artistic Judgment ..................................................................................... 13 
7  The Time, Effort, or Expense Required to Create the Work ........................................................................... 13 
8  Design Alternatives ........................................................................................................................................................ 13 
9  Material Composition of the Work ........................................................................................................................... 14 
10  Commercial Appeal or Success .................................................................................................................................. 14 
11  Other Forms of Legal Protection ............................................................................................................................... 14 

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Derivative Works ............................................................................................................................................................ 14 
1  Copyrightable Subject Matter .................................................................................................................................... 14 
2  The Originality Requirement for Derivative Works .......................................................................................... 15 
Compilations and Collective Works ......................................................................................................................... 17 
1  Copyrightable Subject Matter .................................................................................................................................... 17 
2  The Originality Requirement for Compilations................................................................................................... 18 
3  The Originality Requirement for Collective Works ........................................................................................... 20 
Uncopyrightable Material ............................................................................................................................................ 20 
1  Works That Have Not Been Fixed............................................................................................................................. 20 
2  Works That Lack Human Authorship ..................................................................................................................... 21 
3  Works That Do Not Constitute Copyrightable Subject Matter ...................................................................... 22 
3(A)  Ideas, Procedures, Processes, Systems, Methods of Operation,  Concepts, Principles, or Discoveries
................................................................................................................................................................................................ 22 
3(B)  Merger of Idea and Expression .................................................................................................................................. 23 
3(C)  Facts ..................................................................................................................................................................................... 24 
3(D)  Typeface and Mere Variations of Typographic Ornamentation ................................................................... 24 
3(E)  Format and Layout ......................................................................................................................................................... 25 
4  Works That Do Not Satisfy the Originality Requirement ................................................................................ 26 
4(A)  Mere Copies....................................................................................................................................................................... 26 
4(B)  De Minimis Authorship.................................................................................................................................................. 27 
4(C)  Words and Short Phrases ............................................................................................................................................ 28 
4(D)  Works Consisting Entirely of Information That Is Common Property ....................................................... 29 
4(E)  Measuring and Computing Devices ......................................................................................................................... 29 
4(F)  Mere Listing of Ingredients or Contents ................................................................................................................ 30 
4(G)  Blank Forms ...................................................................................................................................................................... 30 
4(H)  Characters .......................................................................................................................................................................... 31 
4(I)  Scènes à Faire.................................................................................................................................................................... 32 
4(J)  Familiar Symbols and Designs ................................................................................................................................... 32 
4(K)  Mere Variations of Coloring ........................................................................................................................................ 33 
5  Specific Types of Works That May Contain Uncopyrightable Material...................................................... 34 
6  Other Types of Works That Cannot Be Registered with the  U.S. Copyright Office ............................... 35 
6(A)  Foreign Works That Are Not Eligible for Copyright Protection  in the United States .......................... 35 

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313.6(B) Unlawful Use of Preexisting Material in a Derivative Work, a Compilation, or a Collective Work 35

313.6(C) Government Works ........................................................................................................................................................ 36

313.6(C)(1) U.S. Government Works ............................................................................................................................................... 36

313.6(C)(2) Government Edicts ......................................................................................................................................................... 37

313.6(D) Works in the Public Domain ....................................................................................................................................... 38

314 Use of Protected Names, Characters, Slogans, Symbols, Seals, Emblems, and Insignia...................... 38

315 Obscenity ........................................................................................................................................................................... 39

316 Classified Material .......................................................................................................................................................... 39

 
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  301  What This Chapter Covers  
This Chapter discusses the U.S. Copyright Office’s practices and procedures for 
evaluating copyrightable authorship. For guidance on practices and procedures relating 
to specific types of works, see the following Chapters: 
•  For a general overview of the registration process, see Chapter 200. 
•  For guidance in determining who may file an application and who may be named as 
the copyright claimant, see Chapter 400. 
•  For guidance in identifying the work that will be submitted for registration, see 
Chapter 500. 
•  For guidance in completing the application, see Chapter 600. 
•  For a discussion of literary works, see Chapter 700.  
•  For a discussion of works of the performing arts, see Chapter 800.  
•  For a discussion of visual art works, see Chapter 900.  
•  For a discussion of websites and website content, see Chapter 1000.  
•  For a discussion of the options for registering certain groups of works, see  
Chapter 1100. 
•  For a discussion of renewal registrations, see Chapter 2100.  
  302  The Legal Framework  
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.” 17 U.S.C. § 102(a). 
“A valid copyright extends only to copyrightable subject matter.” Star Athletica, LLC v. Varsity 
Brands, Inc., 137 S. Ct. 1002, 1005 (2017). Section 410(a) of the statute states that the 
Register of Copyrights shall register a claim to copyright and issue a certificate of 
registration if the U.S. Copyright Office determines that “the material deposited 
constitutes copyrightable subject matter and that the other legal and formal 
requirements have been met.” If the Office determines that “the material deposited does 
not constitute copyrightable subject matter or that the claim is invalid for any other 

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reason, the Register shall refuse registration and shall notify the applicant in writing of 
the reasons for such refusal.” 17 U.S.C. § 410(b). 
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. 
These questions are discussed in Sections 304 through 308 below. For information on 
how the Office interprets these questions when examining derivative works, 
compilations, and collective works, see Sections 311 and 312. 
For information on how the Office interprets these questions when examining specific 
types of literary works, works of the performing arts, and visual art works, see Chapters 
700, 800, and 900. 
  303  Copyrightability Is Determined Based on U.S. Copyright Law 
The U.S. Copyright Act is the exclusive source of copyright protection in the United States. 
To register a work with the U.S. Copyright Office, all applicants — both foreign and 
domestic — must satisfy the requirements of U.S. copyright law. In determining whether 
a work is copyrightable, the Office applies U.S. copyright law pursuant to title 17 of the 
U.S. Code, even if the work was created in a foreign country, first published in a foreign 
country, or created by a citizen, domiciliary, or habitual resident of a foreign country.  
  304  Eligibility 
The U.S. Copyright Office may register a work of authorship if it is eligible for copyright 
protection in the United States. All U.S. works — both published and unpublished — 
created on or after January 1, 1978, are eligible for U.S. copyright protection. 17 U.S.C. § 
104(a), (b). Additionally, all unpublished foreign works and most published foreign 
works are eligible for U.S. copyright protection. Id. For more information on the 
eligibility requirements for published foreign works, see Chapter 2000, Section 2003. 

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305 The Fixation Requirement

To be copyrightable, a work of authorship must be “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.” 17 U.S.C. § 102(a). 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.” 17 U.S.C. § 101 (definition

of “fixed”).

The terms “copy” and “phonorecord” are very broad. They cover “all of the material

objects in which copyrightable works are capable of being fixed,” H.R. REP. NO. 94-1476,

at 53 (1976), reprinted in 1976 U.S.C.C.A.N 5659, 5666.

• 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.” 17 U.S.C. § 101.

• 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.” 17 U.S.C. § 101.

There are countless ways that a work may be fixed in a copy or phonorecord and “it

makes no difference what the form, manner, or medium of fixation may be.” H.R. REP. NO.

94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666. For example, a work may

be expressed in “words, numbers, notes, sounds, pictures, or any other graphic or

symbolic indicia” and the author’s expression may be fixed “in a physical object in written,

printed, photographic, sculptural, punched, magnetic, or any other stable form.” Id.

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

The provisions of the House Report cited or quoted throughout this Chapter are identical to the

corresponding provisions set forth in Senate Report No. 94-473 (1975).

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computer.” H.R. REP. NO. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666 
(internal quotations marks omitted).  
The Office rarely encounters works that do not satisfy the fixation requirement because 
the Office requires applicants to submit copies or phonorecords that contain a visually 
or aurally perceptible copy of the work. However, 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. 
  306  The Human Authorship Requirement  
The U.S. Copyright Office will register an original work of authorship, provided that the 
work was created by a human being. 
The copyright law only protects “the fruits of intellectual labor” that “are founded in the 
creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). 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. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative 
examples of works that do not satisfy this requirement, see Section 313.2 below. 
  307  Copyrightable Subject Matter  
A work of authorship may be registered with the U.S. Copyright Office, provided that it 
constitutes copyrightable subject matter. 
Section 102(a) of the Copyright Act states that the subject matter of copyright includes 
the following categories of works:  
•  Literary works.  
•  Musical works, including any accompanying words. 
•  Dramatic works, including any accompanying music. 
•  Pantomimes and choreographic works. 
•  Pictorial, graphic, and sculptural works. 
•  Motion pictures and other audiovisual works. 
•  Sound recordings. 
•  Architectural works. 
Section 103(a) states that the subject matter of copyright includes compilations (which 
cover collective works) and derivative works. See 17 U.S.C. § 103(a); see also 17 U.S.C. § 
101 (explaining that “[t]he term ‘compilation’ includes collective works”). These types of 

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works are a subset of the categories set forth in Section 102(a), rather than separate and 
distinct categories of works. In other words, derivative works, compilations, and 
collective works may be registered, provided that the work falls within one or more of 
the congressionally established categories of authorship under Section 102(a). See 
Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012). 
The categories of works set forth in Section 102(a) “do not necessarily exhaust the 
scope of ‘original works of authorship’ that the [Copyright Act] is intended to protect.” 
H.R. REP. NO. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666. The statute 
“sets out the general area of copyrightable subject matter” with “sufficient flexibility to 
free the courts from rigid or outmoded concepts of the scope of particular categories.” 
Id. The categories are also “overlapping in the sense that a work falling within one class 
may encompass works coming within some or all of the other categories.” Id. 
Congress gave federal courts the flexibility to interpret the scope of the existing subject 
matter categories, but only Congress has the authority to create entirely new categories 
of authorship. “If the federal courts do not have the authority to establish new 
categories of subject matter, it necessarily follows that the Copyright Office also has no 
such authority in the absence of any clear delegation of authority to the Register of 
Copyrights.” 77 Fed. Reg. at 37,607. 
While the categories listed in Section 102(a) are “very broad . . . there are 
unquestionably other areas of existing subject matter that [the Copyright Act] does not 
propose to protect . . . .” H.R. REP. NO. 94-1476, at 52 (1976), reprinted in 1976 
U.S.C.C.A.N. at 5665. If the Office determines that a work does not fall within the 
categories of copyrightable subject matter, the Office will refuse to register the claim. 
For representative examples of works that do not satisfy this requirement, see Sections 
313.3 and 313.6(C) below. 
  308  The Originality Requirement 
Originality is “the bedrock principle of copyright” and “the very premise of copyright 
law.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991) 
(citation omitted). 
“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.” Id. at 345 (citations omitted). 
These requirements are discussed in Sections 308.1 and 308.2 below. 
  308.1  Independent Creation  
The term “independent creation” means that the author created the work without 
copying from other works. See Feist, 499 U.S. at 345. 
The copyright law protects “those components of a work that are original to the author,” 
but “originality” does not require “novelty.” Id. at 345, 348. 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.” Id. at 345. For example, if 

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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.  
As a general rule, the Office will accept the applicant’s representation that the work was 
independently created by the author(s) named in the application, unless that statement 
is implausible or is contradicted by information provided elsewhere in the registration 
materials or in the Office’s records or by information that is known to the registration 
specialist. If the specialist determines that the work was not independently created, he 
or she may communicate with the applicant or may refuse to register the claim.  
For representative examples of works that do not satisfy the independent creation 
requirement, see Section 313.4(A) below. 
  308.2  Creativity  
A work of authorship must possess “some minimal degree of creativity” to sustain a 
copyright claim. Feist, 499 U.S. at 358, 362 (citation omitted).  
 “[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative 
expression will suffice. “The vast majority of works make the grade quite easily, as they 
possess some creative spark, ‘no matter how crude, humble or obvious it might be.’” Id. 
at 346 (citation omitted).  
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. Feist, 499 U.S. at 362. 
“[T]here is nothing remotely creative” about a work that merely reflects “an age-old 
practice, firmly rooted in tradition and so commonplace that it has come to be expected 
as a matter of course.” Id. at 363. Likewise, a work “does not possess the minimal 
creative spark required by the Copyright Act” if the author’s expression is “obvious” or 
“practically inevitable.” Id. at 363. 
Although the creativity standard is low, it is not limitless. Id. at 362. “There remains a 
narrow category of works in which the creative spark is utterly lacking or so trivial as to 
be virtually nonexistent. Such works are incapable of sustaining a valid copyright.” Id. at 
359 (citations omitted).  
If the Office determines that a work possesses sufficient creativity, it will register the 
claim and issue a certificate of registration. Conversely, if the Office determines that the 
work does not possess some minimal degree of creativity, it will refuse registration.  
For more information on works that do not satisfy the creativity requirement, see 
Sections 313.4(A) through 313.4(K) below. 
  309  Examining a Work for Copyrightable Authorship  
As discussed in Section 302, the U.S. Copyright Office will examine a work of authorship 
to determine if “the material deposited constitutes copyrightable subject matter” and if 
“the other legal and formal requirements have been met.” 17 U.S.C. § 410(a). In 

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determining whether a work is copyrightable, the registration specialist will consider (i) 
the application, (ii) the deposit copy(ies), (iii) whether the correct the filing fee was 
submitted, as well as (iv) any communications between the applicant and the Office 
relating to the registration of the claim or any other material that has been submitted to 
the Office. Together, these items are referred to as the “registration materials.”  
As discussed in Sections 304 through 308, a work may be copyrightable (i) if it is eligible 
for copyright protection in the United States, (ii) if the work has been fixed in a tangible 
medium of expression, (iii) if the work was created by a human author, (iv) if the work 
constitutes copyrightable subject matter, and (v) if the work contains at least a 
minimum amount of creative authorship that is original to the author. 
When examining a claim to copyright, the registration specialist will use objective 
criteria to determine whether the work satisfies these requirements by reviewing the 
information provided in the application and by examining the deposit copy(ies), 
including its individual elements as well as the work as a whole. The specific criteria 
that the specialist will consider when examining a derivative work, a compilation, or a 
collective work are discussed in Sections 311 and 312. The specific criteria that the 
specialist will consider when examining a literary work, a work of the performing arts, 
or a work of the visual arts are discussed in Chapters 700, 800, and 900. 
  309.1  Prior Works and Prior Registrations  
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. For purposes of determining copyrightability, 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.  
  309.2  Facts Stated in the Application 
The U.S. Copyright Office generally will accept the facts stated in the application and 
other registration materials, unless they are implausible or conflict with information in 
the registration materials, the Office’s records, or other sources of information that are 
known by the Office or the general public. Knowingly making a false representation of a 
material fact in an application for copyright registration, or in any written statement 
filed in connection with an application, is a crime that is punishable under 17 U.S.C. § 
506(e). 
Ordinarily, the Office will not conduct its own factual investigation to confirm the truth 
of the statements made in the application. However, the Office may take administrative 
notice of facts or matters that are known by the Office or the general public, and may 
communicate with the applicant if the application appears to contain inaccurate or 
erroneous information. 

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309.3 No Precedential Value

The determination of copyrightability will be made on a case-by-case basis. The fact that

the U.S. Copyright Office registered a particular work does not necessarily mean that the

Office will register similar types of works or works that fall within the same category. A

decision to register a particular work has no precedential value and is not binding upon

the Office when it examines any other application.

310 Factors That Will Not Be Considered in the Examination of Originality

As a general rule, the U.S. Copyright Office will not consider factors that have no bearing

on whether the originality requirement has been met. Examples of such factors are

discussed in Sections 310.1 through 310.10 below.

310.1 Novelty or Ingenuity

The U.S. Copyright Office will examine each work in isolation to determine whether it

satisfies the originality requirement. The fact that a work may be novel, distinctive,

innovative, or even unique is irrelevant to this analysis. See H.R. REP. NO. 94-1476, at 51

(1976), reprinted in 1976 U.S.C.C.A.N. at 5664 (stating “the standard of originality

established by the courts . . . does not include requirements of novelty [or] ingenuity”

and that Congress did not intend “to enlarge the standard of copyright protection” to

impose these requirements).

As discussed in Section 308, “originality requires independent creation plus a modicum

of creativity.” Feist, 499 U.S. at 346. The author’s expression does not need to be novel,

and it does not need to “be presented in an innovative or surprising way.” Id. at 362; see

also L. Batlin & Son v. Snyder, 536 F.2d 486, 490 (2d. Cir. 1976) (“Originality is . . .

distinguished from novelty; there must be independent creation, but it need not be

invention in the sense of striking uniqueness, ingeniousness, or novelty”). A work of

authorship may be original, even though it is neither new nor inventive or even if “it

closely resembles other works.” Feist, 499 U.S. at 345 (explaining that “[o]riginality does

not signify novelty”). Conversely, the fact that a work is new, innovative, or even unique

does not necessarily mean that it contains a sufficient amount of creative expression to

satisfy the originality requirement.

310.2 Aesthetic Value, Artistic Merit, and Intrinsic Quality

In determining whether a work contains a sufficient amount of original authorship, the

U.S. Copyright Office does not consider the aesthetic value, artistic merit, or intrinsic

quality of a work. H.R. REP. NO. 94-1476, at 51 (1976) , reprinted in 1976 U.S.C.C.A.N. at

5664. For example, the Office will not look for any particular style of creative

expression. Likewise, the Office will not consider whether a work is visually appealing

or written in elegant prose.

As the Supreme Court noted, “it would be a dangerous undertaking for persons trained

only to the law to constitute themselves final judges of the worth of pictorial

illustrations, outside of the narrowest and most obvious limits.” Bleistein v. Donaldson

Lithographing Co., 188 U.S. 239, 251 (1903). The legislative history for the Copyright Act

recognizes that “the standard of originality established by the courts . . . does not include

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requirements of . . . esthetic merit” and expressly states that Congress did not intend “to

enlarge the standard of copyright protection” to impose this requirement. See H.R. REP.

NO. 94-1476, at 51 (1976) , reprinted in 1976 U.S.C.C.A.N. at 5664.

For the same reasons, the Office will not consider the truth or falsity of the facts set forth

in a work of authorship. Nor will the Office consider the soundness or the unsoundness

of the views espoused in the work. See Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir.

1973) (“The gravity and immensity of the problems, theological, philosophical,

economic and scientific, that would confront a court if this view were adopted are

staggering to contemplate. It is surely not a task lightly to be assumed, and we decline

the invitation to assume it.”) (footnote omitted).

310.3 Symbolic Meaning and Impression

When the U.S. Copyright Office examines a work of authorship, it determines whether

the work “possess[es] the minimal creative spark required by the Copyright Act and the

Constitution.” Feist, 499 U.S. at 363. The symbolic meaning or impression of a work is

irrelevant to this determination.

The Office will use objective criteria to determine whether a work constitutes

copyrightable subject matter and satisfies the originality requirement. In making this

determination, the Office will consider the expression that is fixed in the work itself and

is perceptible in the deposit copy(ies). Specifically, the Office will focus only on the

actual appearance or sound of the work that has been submitted for registration, but

will not consider any meaning or significance that the work may evoke. See Star

Athletica, 137 S. Ct. at 1015 (“our inquiry is limited to how [the work is] perceived”). The

fact that creative thought may take place in the mind of the person who encounters a

work has no bearing on the issue of originality. See 17 U.S.C. § 102.

310.4 Look and Feel

The U.S. Copyright Office will not consider the so-called “look and feel” of a work.

Invoking a work’s “feel” is not a viable substitute for an objective analysis of the work’s

fixed and creative elements. See 4 MELVILLE & DAVID NIMMER, NIMMER ON Copyright §

13.03[A][1][c] (2013) (criticizing the use of “feel” as a “wholly amorphous referent” that

“merely invites an abdication of analysis”).

310.5 The Author’s Inspiration and Intent

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.

Instead, the Office will focus solely on the appearance or sound of the work that has

been submitted for registration to determine whether it is original and creative within

the meaning of the statute and the relevant case law.

Evaluating the author’s inspiration or intent would require the Office “to consider

evidence of the creator’s design methods, purposes, and reasons.” Star Athletica, 137 S.

Ct. at 1015. The Supreme Court has made it clear that copyrightability should be based

on how a work is perceived, not how or why it was designed. See id.

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Likewise, 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.

310.6 The Author’s Skill, Experience, and Artistic Judgment

When evaluating a work for copyrightable authorship, the U.S. Copyright Office will not

consider the author’s skill, experience, or artistic judgment. The author’s personal or

professional history is irrelevant to the determination of copyrightability. See Star

Athletica, 137 S. Ct. at 1015 (declining to consider “the designer’s artistic judgment,” because

it is not “grounded in the text of the statute”). Instead, the Office will focus solely on the

appearance or sound of the work that has been submitted for registration to determine

whether it satisfies the originality requirement. See L. Batlin & Son, 536 F.2d at 491

(finding that “the requirement of originality [cannot] be satisfied simply by the

demonstration of ‘physical skill’ or ‘special training’”).

310.7 The Time, Effort, or Expense Required to Create the Work

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. These issues have no

bearing on whether a work possesses the minimum creative spark required by the

so-called “sweat of the brow” doctrine that provided copyright protection solely as a

“reward for the hard work” of creating a work); Star Athletica, 137 S. Ct. at 1015 (“our

inquiry is limited to how the [work is] perceived,” not how it was designed). As Justice

O’Connor observed, “copyright rewards originality, not effort” and “[w]ithout a doubt,

the ‘sweat of the brow’ doctrine flouted basic copyright principles.” Feist, 499 U.S. at

352, 354, 364.

310.8 Design Alternatives

When examining a work for original authorship, the U.S. Copyright Office will focus on

the appearance or sound of the work that has been submitted for registration, including

its individual elements and the work as a whole, to determine whether it contains a

sufficient amount of original and creative authorship.

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 creative process often requires many choices involving the size, coloring,

orientation, proportion, configuration, perspective, or other constituent elements of the

work. These types of choices are present in every work of authorship. It is not the

variety of choices available to the author that must be evaluated, but the actual work

that the author created.

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  310.9  Material Composition of the Work 
As a general rule, the materials used to create a work have no bearing on the originality 
analysis. For example, the U.S. Copyright Office will not consider the fact that a jewelry 
design was constructed with precious metals or gemstones, or the fact that a silk screen 
was printed on a particular paper stock.  
  310.10  Commercial Appeal or Success  
When examining a work for copyrightable authorship, the U.S. Copyright Office will not 
consider the marketability or commercial success of the work. Likewise, the Office will 
not consider “factors such as mass production” or the number of copies or 
phonorecords that have been made. H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 
1976 U.S.C.C.A.N. 5659, 5667. 
“Nothing in the statute suggests that copyrightability depends on market surveys.” Star 
Athletica, 137 S. Ct. at 1015. “Works may experience commercial success even without 
originality and works with originality may enjoy none whatsoever.” Paul Morelli Design, 
Inc. v. Tiffany & Co., 200 F. Supp. 2d 482, 488 (E.D. Pa. 2002).  
“Moreover, asking whether some segment of the market would be interested in a given 
work threatens to prize popular art over other forms, or to substitute judicial aesthetic 
preferences for the policy choices embodied in the Copyright Act.” Star Athletica, 137 S. 
Ct. at 1015. 
  310.11  Other Forms of Legal Protection 
When examining a work of authorship, the U.S. Copyright Office will focus solely on the 
requirements of U.S. copyright law. The fact that a work may or may not be protected by 
a design patent, trademark registration, or other form of legal protection is irrelevant to 
this determination. See Star Athletica, 137 S. Ct. at 1015; 37 C.F.R. § 202.10(a), (b); H.R. REP. 
NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667. 
  311  Derivative Works  
This Section discusses the U.S. Copyright Office’s practices and procedures for 
evaluating the copyrightability of a derivative work.  
For a definition and general discussion of derivative works, see Chapter 500, Section 
507. For specific instructions on how to prepare an application to register this type of 
work, see Chapter 600, Sections 613.6, 617.5, 618.5, 620.7, and 621. 
  311.1  Copyrightable Subject Matter 
A derivative work may be registered with the U.S. Copyright Office, provided that it 
constitutes copyrightable subject matter.  
As discussed in Section 307 above, derivative works are a subset of the subject matter 
categories, rather than a separate and distinct category of work. In other words, the new 
material that the author contributed to the derivative work must fall “within one or 

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more of the categories listed in section 102 [of the Copyright Act].” H.R. REP. NO. 94-
1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. If the new material does not 
fall within one or more of the congressionally established categories of authorship, the 
registration specialist may communicate with the applicant if the authorship is 
questionable or may refuse registration. For example, the Office may register a drawing 
of a dress or a photograph of a garden, but it cannot register a “revised dress design” or 
a “genetically modified plant,” because clothing and plants do not constitute 
copyrightable subject matter under Section 102(a) of the Copyright Act. Cf. Registration 
of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012). 
In addition, the preexisting work that has been recast, transformed, or adapted, “must 
come within the general subject matter of copyright set forth in section 102, regardless 
of whether it is or was ever copyrighted.” H.R. REP. NO. 94-1476, at 57 (1976), reprinted 
in 1976 U.S.C.C.A.N. at 5670. In other words, the preexisting work must qualify as a 
literary work; a musical work; a dramatic work; a pantomime or choreographic work; a 
pictorial, graphic or sculptural work; a motion picture or audiovisual work; a sound 
recording; and/or an architectural work. For example, a ballet based on an epic poem 
would be considered a derivative work, because a poem is a type of literary work. By 
contrast, a photograph of a lake or a sculpture of a mountain would not be considered a 
derivative work, because lakes and mountains do not constitute copyrightable subject 
matter. 
The fact that the author incorporated uncopyrightable elements of a preexisting work 
into his or her work does not necessarily mean that the author’s expression qualifies as 
a derivative work. For example, merely incorporating a word, letter, number, or 
common geometric shape from one or more preexisting works does not constitute 
derivative authorship. Instead, the author of the derivative work must recast, transform, 
or adapt some of the copyrightable portions of a preexisting work. See H.R. REP. NO. 94-
1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670 (explaining that a derivative 
work “requires a process of recasting, transforming, or adapting ‘one or more 
preexisting works’” and that “the ‘preexisting work’ must come within the general 
subject matter of copyright” whereas “[a] ‘compilation’ results from a process of 
selecting, bringing together, organizing and arranging previously existing material of all 
kinds, regardless of whether the individual items in the material have been or ever 
could have been subject to copyright.”). 
  311.2  The Originality Requirement for Derivative Works  
Creating a derivative work requires “a process of recasting, transforming, or adapting 
‘one or more preexisting works.’” H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 
U.S.C.C.A.N. at 5670. Thus, derivative works contain two distinct forms of authorship: 
•  The authorship in the preexisting work(s) that has been recast, transformed, or 
adapted within the derivative work; and  
•  The new authorship involved in recasting, transforming, or adapting those 
preexisting work(s).  

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The new authorship that the author contributed to the derivative work may be 
registered, provided that it contains a sufficient amount of original expression, meaning 
that the derivative work must be independently created and it must possess more than a 
modicum of creativity. See Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 
(2d Cir. 1994).  
As discussed in Section 308.1, independent creation means that the author(s) named in 
the application created the new or revised material that the applicant intends to 
register, “and this in turn means that the work must not consist of actual copying.”  
L. Batlin & Son, 536 F.2d at 490 (citation omitted). 
The amount of creativity required for a derivative work is the same as that required for 
a copyright in any other work. “All that is needed to satisfy both the Constitution and the 
statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, 
something recognizably ‘his own.’” Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 
102-03 (2d Cir. 1951) (citing Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d. Cir. 
1945)). Thus, “the key inquiry is whether there is sufficient nontrivial expressive 
variation in the derivative work to make it distinguishable from the [preexisting] work 
in some meaningful way.” Schrock v. Learning Curve International, Inc., 586 F.3d 513, 
521 (7th Cir. 2009). 
“While the quantum of originality that is required may be modest indeed,” courts have 
recognized that derivative works “[l]acking even a modest degree of originality. . . are 
not copyrightable.” L. Batlin & Son, 536 F.2d at 490; Durham Industries, Inc. v. Tomy 
Corp., 630 F.2d 905, 911 (2d Cir. 1980). Miniscule variations do not satisfy this 
requirement, such as merely changing the size of the preexisting work. Merely recasting 
a work from one medium to another alone does not support a claim in derivative 
authorship. See L. Batlin & Son, 536 F.2d at 491. “Nor can the requirement of originality 
be satisfied simply by the demonstration of ‘physical skill’ or ‘special training.’” Id.  
A registration for a derivative work only covers the new authorship that the author 
contributed to that work. It does not cover the authorship in the preexisting work(s) 
that has been recast, transformed, or adapted by the author of the derivative work. H.R. 
REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670.  
Likewise, a registration for a derivative work does not cover any previously published 
material, previously registered material, or public domain material that appears in the 
derivative work. Nor does it cover any material that is not owned by the copyright 
claimant. See 17 U.S.C. § 103(b) (stating that the copyright in a derivative work is 
“independent of, and does not affect or enlarge the scope, duration, ownership, or 
subsistence of, any copyright protection in the preexisting material”). If a derivative 
work contains an appreciable amount of previously published material, previously 
registered material, public domain material, or third party material, the applicant 
should exclude that material from the claim using the procedure described in Chapter 
600, Section 621. For additional information concerning the scope of the copyright in a 
derivative work, see Chapter 500, Section 507.2.  

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  312  Compilations and Collective Works  
This Section discusses the U.S. Copyright Office’s general practices and procedures for 
evaluating the copyrightability of compilations and collective works. 
For a definition and general discussion of these types of works, see Chapter 500, 
Sections 508 and 509. For specific instructions on how to prepare an application to 
register a compilation, see Chapter 600, Sections 613.7, 617.5, 618.6, 620.7, and 
621.8(C). For specific instructions on how to prepare an application to register a 
collective work, see Chapter 600, Sections 610.4, 613.8, 618.7, 620.8, and 621.8(D) 
  312.1  Copyrightable Subject Matter 
A compilation or a collective work may be registered with the U.S. Copyright Office, 
provided that it constitutes copyrightable subject matter.  
As discussed in Section 307, compilations and collective works are a subset of the 
subject matter categories set forth in Section 102(a) of the Copyright Act, rather than 
separate and distinct categories of works. See Registration of Claims to Copyright, 77 
Fed. Reg. 37,605, 37,606 (June 22, 2012). Thus, a compilation or a collective work must 
qualify as a literary work; a musical work; a dramatic work; a pantomime or 
choreographic work; a pictorial, graphic or sculptural work; a motion picture or 
audiovisual work; a sound recording; and/or an architectural work. See id. If the 
authorship involved in creating the compilation or collective work as a whole (i.e., the 
author’s selection, coordination, and/or arrangement) does not fall within one or more 
of the congressionally established categories of authorship, the registration specialist 
may communicate with the applicant if the authorship appears questionable or may 
refuse registration. Id. 
Examples: 
•  The Office may register a sculptural work comprised of rocks that 
are selected, coordinated, and arranged in a creative manner. 
Likewise, the Office may register a photograph of a rock, a drawing 
of a handtool, or a written expression of an idea. However, the Office 
cannot register a mere “compilation of ideas,” a mere “selection and 
arrangement of handtools,” or a mere “compilation of rocks,” 
because ideas, handtools, and rocks do not constitute copyrightable 
subject matter under Section 102(a) of the Copyright Act. 
•  The Office may register a photograph of food if the photographer 
exercised some minimal level of creativity in taking the picture. 
However, the Office cannot register a “compilation of food” based on 
a selection, coordination, and/or arrangement of items on a plate, 
because food does not constitute copyrightable subject matter 
under Section 102(a) of the Copyright Act. Although a sculptural 
depiction of a plate of food may be copyrightable, that would not 
prevent actual food from being arranged in the same way. See 17 
U.S.C. § 113(b). 

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•  The Office may register a claim in a compilation containing the 
names of the author’s fifty favorite restaurants. While a restaurant 
or the name of a restaurant does not constitute copyrightable 
subject matter under Section 102(a) of the Act, a list of restaurant 
names may constitute a literary work, which is one of the 
congressionally established categories of authorship. 
See 77 Fed. Reg. at 37,606. 
  312.2  The Originality Requirement for Compilations  
A compilation may contain several distinct forms of authorship: 
•  Selection authorship involved in choosing the material or data that will be included 
in the compilation; 
•  Coordination authorship involved in classifying, categorizing, ordering, or grouping 
the material or data; and/or 
•  Arrangement authorship involved in organizing or moving the order, position, or 
placement of material or data within the compilation as a whole.  
See Feist, 499 U.S. at 348. 
In determining whether a compilation satisfies the originality requirement, the 
registration specialist should focus on the manner in which the materials or data “have 
been selected, coordinated, and arranged” and “the principal focus should be on 
whether the selection, coordination, and arrangement are sufficiently original to merit 
protection.” Id. at 358.  
The authorship involved in selecting, coordinating, and arranging the preexisting 
material or data must be objectively revealed in the deposit copy(ies). See id. 
(“Originality requires only that the author make the selection or arrangement 
independently . . . and that it display some minimal level of creativity”) (emphasis 
added). For instance, a compilation of statistics is not copyrightable if the author’s 
selection, coordination, or arrangement of data is not evident in the claim. 
While “[t]he originality requirement is not particularly stringent,” the Office cannot 
register a compilation “in which the selection, coordination, and arrangement are not 
sufficiently original to trigger copyright protection.” Id. The preexisting material or data 
do not need to “be presented in an innovative or surprising way.” See id. at 362. The 
Office may register the claim if the author’s selection possesses some minimal degree of 
creativity, even if the coordination and/or arrangement do not (or vice versa). However, 
the more creative the selection, coordination, and/or arrangement, the more likely it is 
that the author’s compilation will be registered. For example, the Office generally will 
not register a compilation consisting of all the elements from a particular set of data, 
because the selection is standard or obvious. Likewise, the Office generally will not 
register a compilation containing only two or three elements, because the selection is 
necessarily de minimis. See H.R. REP. NO. 94-1476, at 122 (1976), reprinted in U.S.C.C.A.N. 

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at 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”).

In determining whether the author’s compilation is sufficiently original, the U.S.

• What type of material or data did the author compile?

• How is the material or data presented?

• Was the selection, coordination, and/or arrangement made from a large or diverse

pool of material or data?

• Was the coordination or arrangement standard?

• Is the selection exhaustive (e.g., a parts catalog containing standard information for

all of the parts sold by a particular company)?

• Is the coordination or arrangement obvious (e.g., is the information listed in

alphabetical, numerical, or chronological order)?

The statute also provides that preexisting material or data “must be selected,

coordinated, or arranged ‘in such a way’ as to render the work as a whole original. This

implies that some ‘ways’ will trigger copyright, but that others will not.” Feist, 499 U.S. at

358 (citing 17 U.S.C. § 101 definition of “compilation”).

Examples:

• Generally, a selection consisting of less than four items will be

scrutinized for sufficient authorship.

• A selection, coordination, and/or arrangement that is mechanical or

routine, such as an alphabetical list of items added to a catalog

within the past twelve months, a symmetrical arrangement of

stones on jewelry, arranging geometric shapes in a standard or

symmetrical manner, arranging notes in standard scales or in

standard melodic or harmonic intervals, or a musical work

consisting solely of a musical scale(s).

• A selection, coordination, and/or arrangement that is commonplace

such that it has come to be expected as a matter of course.

• A compilation that contains an obvious selection, coordination,

and/or arrangement of material, such as a complete list of stories

written by Zane Grey between 1930 and 1939, a complete collection

of Arthur Conan Doyle’s Sherlock Holmes stories, or a collection of a

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feature writer’s contributions to a particular newspaper over a 
period of six months arranged in chronological order. 
•  A selection that is dictated by law, such as a law requiring a 
telephone company to publish a directory containing the names, 
addresses, and telephone numbers of its subscribers.  
•  A selection, coordination, and/or arrangement of data that is 
practically inevitable, such as a standard organizational chart. 
•  Mailing or subscriber lists that contain standard information about 
a predetermined group of people organized in an obvious manner, 
such as an alphabetical list of all the names, telephone numbers, and 
email addresses for the members of the graduating class of a 
particular college or university. 
•  A compilation that contains an exhaustive selection of information 
where the information is presented in sequential order, such as a 
genealogy containing a comprehensive selection of public records 
arranged in alphabetical or chronological order. 
  312.3  The Originality Requirement for Collective Works 
A collective work “is a species of ‘compilation’” that “by its nature, must involve the 
selection, assembly, and arrangement of ‘a number of contributions.’” H.R. REP. NO. 94-
1476, at 122 (1976), reprinted in 1976 U.S.C.C.A.N. at 5737 (discussing 17 U.S.C. § 101’s 
definitions of “compilation” and “collective work”). 
Because a collective work is a type of compilation, the U.S. Copyright Office will apply 
the criteria set forth in Section 312.2 to determine whether the author’s selection, 
coordination, and/or arrangement satisfies the originality requirement. When 
examining a particular contribution that appears within a collective work, the Office will 
apply the criteria set forth in Section 309.  
  313  Uncopyrightable Material 
The U.S. Copyright Office has no authority to register works that are not protected by 
copyright law. Some of the more common types of uncopyrightable material are 
discussed in Sections 313.1 through 313.6 below.  
Although uncopyrightable material, by definition, is not eligible for copyright protection, 
the Office may register a work that contains uncopyrightable material, provided that the 
work as a whole contains other material that qualifies as an original work of authorship 
(e.g., a selection, coordination, and/or arrangement of uncopyrightable elements where 
the resulting work as a whole constitutes an original work of authorship). 
  313.1  Works That Have Not Been Fixed  
As discussed in Section 305, a work of authorship may be registered, provided that it 
has been fixed in a tangible medium of expression. See 17 U.S.C. § 102(a). A work that 

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has not been fixed is not protected by the Copyright Act and cannot be registered with

the U.S. Copyright Office, although it might be eligible for protection under state law.

Examples:

• Choreography that has never been filmed or notated.

• An extemporaneous speech that has not been filmed or recorded.

• A work communicated solely through conversation or a live

broadcast that has not been filmed, recorded, written, or

transcribed.

• A dramatic sketch or musical composition improvised or developed

from memory that has not been filmed, recorded, or transcribed.

See H.R. REP. NO. 94-1476, at 52, 131 (1976), reprinted in 1976 U.S.C.C.A.N. at 5747.

313.2 Works That Lack Human Authorship

As discussed in Section 306, the Copyright Act protects “original works of authorship.”

17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must

be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works

that do not satisfy this requirement are not copyrightable.

The U.S. Copyright Office will not register works produced by nature, animals, or plants.

Likewise, the Office cannot register a work purportedly created by divine or

supernatural beings, although the Office may register a work where the application or

the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples:

• A photograph taken by a monkey.

• A mural painted by an elephant.

• A claim based on the appearance of actual animal skin.

• A claim based on driftwood that has been shaped and smoothed by

the ocean.

• A claim based on cut marks, defects, and other qualities found in

natural stone.

• An application for a song naming the Holy Spirit as the author of the

work.

Similarly, the Office will not register works produced by a machine or mere mechanical

process that operates randomly or automatically without any creative input or

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intervention from a human author. The crucial question is “whether the ‘work’ is 
basically one of human authorship, with the computer [or other device] merely being an 
assisting instrument, or whether the traditional elements of authorship in the work 
(literary, artistic, or musical expression or elements of selection, arrangement, etc.) 
were actually conceived and executed not by man but by a machine.” U.S. COPYRIGHT 
OFFICE, REPORT TO THE LIBRARIAN OF CONGRESS BY THE REGISTER OF COPYRIGHTS 5 (1966). 
Examples:  
•  Reducing or enlarging the size of a preexisting work of authorship. 
•  Making changes to a preexisting work of authorship that are 
dictated by manufacturing or materials requirements. 
•  Converting a work from analog to digital format, such as 
transferring a motion picture from VHS to DVD. 
•  Declicking or reducing the noise in a preexisting sound recording or 
converting a sound recording from monaural to stereo sound. 
•  Transposing a song from B major to C major. 
•  Medical imaging produced by x-rays, ultrasounds, magnetic 
resonance imaging, or other diagnostic equipment. 
•  A claim based on a mechanical weaving process that randomly 
produces irregular shapes in the fabric without any discernible 
pattern. 
  313.3  Works That Do Not Constitute Copyrightable Subject Matter  
As discussed in Section 307 above, a work of authorship may be registered, provided 
that it falls within one or more of the categories of works set forth in Section 102(a) of 
the Copyright Act. In other words, a work may be eligible for copyright protection if it 
qualifies as a literary work; a musical work; a dramatic work; a pantomime; a 
choreographic work; a pictorial, graphic, or sculptural work; a motion picture or other 
audiovisual work; a sound recording; or an architectural work. Works that do not fall 
within the existing categories of copyrightable subject matter are not copyrightable and 
cannot be registered with the U.S. Copyright Office. See Registration of Claims to 
Copyright, 77 Fed. Reg. 37,605, 37,607 (June 22, 2012) (“Congress did not delegate 
authority to the courts [or the Copyright Office] to create new categories of authorship. 
Congress reserved this option for itself.”). 
  313.3(A)  Ideas, Procedures, Processes, Systems, Methods of Operation,   
Concepts, Principles, or Discoveries  
Section 102(b) of the Copyright Act expressly excludes copyright protection for “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 
such work.” 17 U.S.C. § 102(b); see also 37 C.F.R. § 202.1(b). As such, any work or 

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portion of a work that is an idea, procedure, process, system, method of operation,

concept, principle, or discovery does not constitute copyrightable subject matter and

cannot be registered.

Examples:

• The idea or concept for a work of authorship.

• The idea for a character.

• Ideas, procedures, processes, or methods for doing, making, or

building things.

• Scientific or technical methods or discoveries.

• Business operations or procedures.

• Mathematical principles, formulas, algorithms, or equations.

• DNA sequences and other genetic, biological, or chemical substances

or compounds, regardless of whether they are man-made or

produced by nature.

• An extrapolation or application of an idea or system that always

produces substantially the same result, such as a computation of

interest based upon a particular rate.

The Office may register a literary, musical, graphic, or artistic description, explanation,

or illustration of an idea, procedure, process, system, method of operation, concept,

principle, or discovery, provided that the work contains a sufficient amount of original

authorship. See H.R. REP. NO. 94-1476, at 56 (1976), reprinted in 1976 U.S.C.C.A.N. at

5669. However, the registration would be limited to the copyrightable literary, musical,

graphic, or artistic aspects of the work because copyright law does not give copyright

owners any exclusive rights in the ideas, procedures, processes, systems, methods of

operation, concepts, principles, or discoveries described in their works. As such,

principles, or discoveries or from implementing the procedures, processes, systems, or

methods of operation described in such works. See Feist, 499 U.S. at 344-45 (explaining

that “[t]he most fundamental axiom of copyright law is that ‘no author may copyright his

ideas or the facts he narrates.’” (quoting Harper & Row, Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539, 556 (1985)).

313.3(B) Merger of Idea and Expression

In some cases, there may be only one way or only a limited number of ways to express a

particular idea, procedure, process, system, method of operation, concept, principle, or

discovery. If the U.S. Copyright Office determines that extending copyright protection to

the author’s expression would effectively accord protection to the idea, procedure, process,

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system, method of operation, concept, principle, or discovery itself, the registration 
specialist may communicate with the applicant or may refuse to register the claim. 
For example, the Office cannot register a claim in the mere idea for a story that is based 
on a common theme, such as “a quarrel between a Jewish father and an Irish father, the 
marriage of their children, the birth of grandchildren and a reconciliation.” See Nichols v. 
Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930). The Office cannot register a 
claim based solely on standard programming techniques that are commonly used to 
achieve a specific result in a computer program. See, e.g., Sega Enterprises, Ltd. v. 
Accolade, Inc., 977 F.2d 1510, 1524 (9th Cir. 1992). Likewise, the Office cannot register a 
claim based solely on standard expressions that naturally follow from the idea for a work 
of authorship, such as a sculpture that depicts a brightly colored jellyfish swimming in a 
vertical orientation. See Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003). 
  313.3(C)  Facts 
Facts are not copyrightable and cannot be registered with the U.S. Copyright Office. “No 
one may claim originality as to facts . . . because facts do not owe their origin to an act of 
authorship.” Feist, 499 U.S. at 347 (internal citation omitted). A person who finds and 
records a particular fact does not create that fact; he or she merely discovers its 
existence. As a result, facts “are never original” and Section 102(b) of the Copyright Act 
“is universally understood to prohibit any copyright in facts.” Id. at 356. “[This] is true of 
all facts – scientific, historical, biographical, and news of the day.” Id. at 348. 
For the same reason, theories, predictions, or conclusions that are asserted to be facts 
are uncopyrightable, even if the assertion of fact is erroneous or incorrect. See, e.g., 
Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978-79 (2d Cir. 1980); Nash v. CBS, 
Inc., 899 F.2d 1537, 1541 (7th Cir. 1990). 
Although facts are not copyrightable, a work of authorship that contains factual 
information may be registered, provided that the work contains a sufficient amount of 
original authorship. For example, a newspaper may be registered, but the registration 
does not cover “[t]he news element – the information respecting current events 
contained in the [publication],” because the news of the day “is not the creation of the 
writer, but is a report of matter that ordinarily are publici juris.” International News 
Service v. Associated Press, 248 U.S. 215, 234 (1918) abrogated on other grounds by Erie 
Railroad Co. v. Tompkins, 304 U.S. 64, 58 (1938). Likewise, “a directory that contains 
absolutely no protectable written expression, only facts,” may be protected by copyright 
only “if it features an original selection or arrangement.” Feist, 499 U.S. at 348. The 
copyright in such works only protects the compilation expression that the author 
contributed to the work. “No matter how original the format . . . the facts themselves do 
not become original through association.” Id. at 349. 
  313.3(D)  Typeface and Mere Variations of Typographic Ornamentation   
The copyright law does not protect typeface or mere variations of typographic 
ornamentation or lettering. 17 U.S.C. § 102(b); 37 C.F.R. § 202.1(a), (e).  
A typeface is a set of letters, numbers, or other symbolic characters with repeating 
design elements that are consistently applied in a notational system that is intended to 

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be used in composing text or other combinations of characters. H.R. REP. NO. 94-1476, at 
55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668. Typeface includes typefonts, 
letterforms, and the like. Registrability of Computer Programs that Generate Typefaces, 
57 Fed. Reg. 6201, 6202 (Feb. 21, 1992). 
The U.S. Copyright Office cannot register a claim to copyright in typeface or mere 
variations of typographic ornamentation or lettering, regardless of whether the typeface 
is commonly used or truly unique. Likewise, the Office cannot register a simple 
combination of a few typefonts, letterforms, or typeface designs with minor linear or 
spatial variations. In Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978) the Office refused 
to register a typeface design under the 1909 Act. Both the District Court and the Court of 
Appeals affirmed the Office’s decision, noting that “typeface has never been considered 
entitled to copyright under the provisions of [the 1909 Act].” 579 F.2d at 298. The 
Fourth Circuit noted that many parties have asked “Congress to amend the law in order 
to provide copyright protection to typeface” and “[j]ust as consistently Congress has 
refused to grant the protection.” Id. Congress addressed this issue when it drafted the 
1976 Act and concluded that typeface is not copyrightable. The House Report expressly 
states: “The Committee does not regard the design of typeface, as thus defined, to be a 
copyrightable ‘pictorial, graphic, or sculptural work’ within the meaning of this bill. . . .” 
H.R. REP. NO. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. at 5668-69. 
For the same reasons, the Office cannot register a claim that is based solely on 
calligraphy because calligraphy is a stylized form of handwriting that is a mere variation 
of typographic ornamentation. Although calligraphy in itself is not copyrightable, a 
literary work, a pictorial work, or a graphic work that contains a sufficient amount of 
original authorship may be registered notwithstanding the fact that it is executed in 
calligraphic form. 
As a general rule, the mere arrangement of type on a page or screen is not copyrightable. 
See Section 313.3(E). However, if the arrangement produces an abstract or 
representational image, such as an advertisement that uses letters to create a 
representation of a person, the Office may register the claim provided that the resulting 
image contains a sufficient amount of pictorial expression.  
The Office may register computer programs that generate typeface(s) provided that 
they contain a sufficient amount of literary authorship. However, the registration does 
not extend to any typeface or mere variations of typographic ornamentation or lettering 
that may be generated by the program. See Registrability of Computer Programs that 
Generate Typeface, 57 Fed. Reg. at 6202. For a discussion of computer programs that 
generate typeface, see Chapter 700, Section 723. 
  313.3(E)  Format and Layout 
As a general rule, the U.S. Copyright Office does not accept vague claims of “format” 
and/or “layout.” The general layout or format of a book, a page, a slide presentation, a 
website, a webpage, a poster, a form, or the like, is not copyrightable because it is a 
template of expression. These terms should be avoided and, if used, will be questioned 
by the registration specialist.  

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arrangement of specific content, such as a compilation of artwork or a compilation of

text, provided that the content is arranged in a sufficiently creative manner. However,

the claim would be limited to the selection, coordination, and/or arrangement of that

specific content, and it would not apply to the format and layout itself.

A standard or common selection, coordination, and/or arrangement of specific content

or simple variations thereof will not support a claim of compilation authorship and

cannot be registered with the Office. If the content that appears in the work is

copyrightable, but the selection, coordination, and/or arrangement of that content is

not, the claim should be limited to the copyrightable content that the author contributed

to the work (e.g., text, artwork, etc.) and the compilation authorship should not be

included in the claim.

For a general discussion of format and layout, see Chapter 900, Section 906.5.

313.4 Works That Do Not Satisfy the Originality Requirement

As discussed in Section 308, the Copyright Act protects “original works of authorship.”

17 U.S.C. § 102(a) (emphasis added). To qualify as an “original” work of authorship, the

work must be independently created and must contain some minimal amount of

creativity. The U.S. Copyright Office will not register works that do not satisfy these

requirements.

313.4(A) Mere Copies

A work that is a mere copy of another work of authorship is not copyrightable. The

Office cannot register a work that has been merely copied from another work of

authorship without any additional original authorship. See L. Batlin & Son, 536 F.2d at

490 (“one who has slavishly or mechanically copied from others may not claim to be an

author”); Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 195 (S.D.N.Y.

1999) (“exact photographic copies of public domain works of art would not be

copyrightable under United States law because they are not original”).

As a general rule, the registration specialist will not search the Office’s records or

conduct independent research to determine whether the work was created by the

author(s) named in the application because the existence of similar or identical works

will not preclude a claim in a work that was independently created. However, if the

applicant asserts a claim in a work that is unusually similar to another work of

authorship that is known to the specialist, he or she may communicate with the

applicant. If the specialist determines that the author copied or incorporated another

work of authorship, he or she may ask the applicant to exclude the preexisting work

from the claim or may refuse registration if the author did not contribute a sufficient

amount of additional original authorship to the work.

Examples:

• An exact reproduction of the Mona Lisa that cannot be distinguished

from the original.

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• A photocopy or scan of a photograph.

• Photocopying, scanning, or digitizing a literary work.

• Dubbing a sound recording from a preexisting recording.

• A toy model that is an exact replica of an automobile, airplane, train,

or other useful article where no creative expression has been added

to the existing design.

313.4(B) De Minimis Authorship

The term “de minimis” comes from the legal principle “de minimis non curat lex,” which

means “the law does not take notice of very small or trifling matters.” As the Supreme

Court stated, “copyright protects only those constituent elements of a work that possess

more than a de minimis quantum of creativity.” Feist, 499 U.S. at 363. Works that contain

no expression or only a de minimis amount of original expression are not copyrightable

and cannot be registered with the U.S. Copyright Office.

Examples:

Literary Works:

• Substituting the pronouns “she” and “her” for “he” and “his” in a

preexisting work of authorship.

• Combining a coined term with a few short phrases that define the

term.

• A Venn diagram consisting of three overlapping circles containing

the names of various personality disorders and a few words and

short phrases that describe the symptoms of each condition.

• A standard form contract for a real estate transaction requesting

factual information from the buyer and containing standard legal

language for the release of the seller’s interest in the property.

• Editing that merely consists of spelling and grammatical

corrections.

Works of the Performing Arts:

• A synopsis consisting of a single sentence.

• A musical phrase consisting of three notes.

• A sound recording consisting of a single tone.

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Works of the Visual Arts: 
 
•  Solitaire rings, simple diamond stud earrings, simple hoop earrings, 
and other jewelry designs that contain only a trivial amount of 
authorship. 
•  Touching-up an aged or damaged photograph in order to restore it 
to its original condition, without adding an appreciable amount of 
authorship to the original image. 
•  A public domain photograph of Winston Churchill combined with the 
word “Commitment” and the quotation “Never, never, never give up.” 
•  An outline map of South Carolina with a blue heart in the center of 
the design featuring the white crescent moon and white palmetto 
tree from the state flag. 
Specific categories of literary works, works of the performing arts, and works of the 
visual arts that contain a de minimis amount of authorship are discussed in Chapters 
700, 800, and 900. 
  313.4(C)  Words and Short Phrases  
Words and short phrases, such as names, titles, and slogans, are not copyrightable 
because they contain a de minimis amount of authorship. See 37 C.F.R. § 202.1(a). The 
U.S. Copyright Office cannot register individual words or brief combinations of words, 
even if the word or short phrase is novel or distinctive or lends itself to a play on words. 
See Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541, 544 (2d Cir. 1959) 
(concluding that the Office’s regulation barring the registration of short phrases is “a fair 
summary of the law”). 
Examples: 
•  The name of an individual (including pseudonyms, pen names, or 
stage names). 
•  The name of a business or organization. 
•  The name of a band or performing group. 
•  The name of a product or service. 
•  A domain name or URL (e.g., www.copyright.gov). 
•  The title or subtitle of a work of authorship. 
•  The name of a character. 

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• Catchwords, catchphrases, mottoes, slogans, or other short

expressions.

For the same reasons, short musical phrases consisting of only a few musical notes

standing alone are not copyrightable and cannot be registered with the U.S. Copyright

Office, even if the phrase is novel or distinctive. See 37 C.F.R. § 202.1(a).

Examples:

• Clock chimes.

• “Mi do re sol, sol re mi do.”

• A trademark consisting of three musical notes.

Similarly, individual numbers, letters, sounds, and short phrases consisting of such

elements are not copyrightable, because they do not contain sufficient creative

authorship. Id.

The Office maintains various databases, indexes, catalogs, and other records that contain

titles of works that have been registered with the Office. These titles are part of the

public record, but the titles themselves are not subject to copyright protection.

313.4(D) Works Consisting Entirely of Information That Is Common Property

The U.S. Copyright Office cannot register works consisting entirely of information that is

common property because such works contain no original authorship. 37 C.F.R. §

202.1(d). Examples of common property include, without limitation, standard calendars,

schedules of sporting events, and lists or tables taken from public documents or other

common sources. Id. For the same reasons, the Office cannot register a claim in common

sayings, diatonic and chromatic musical scales, or common chord progressions that

merely consist of standard harmonies or common musical phrases.

313.4(E) Measuring and Computing Devices

The U.S. Copyright Office cannot register devices that are designed for computing or

measuring or other useful articles in and of themselves. See 37 C.F.R. § 202.1(d).

Examples of such devices include, without limitation, height and weight charts, tape

measures and rulers, calculators, scales, and thermometers.

Although measuring and computing devices are not copyrightable, the Office may

only if those features are separable from the article. For example, a drawing that

appears on the surface of a height and weight chart or a fanciful graphic that appears on

the surface of a thermometer may be registered if the pictorial or graphic feature can be

perceived as a two-dimensional “work of art separate from the useful article” and would

qualify as a protectable pictorial or graphic work “if it were imagined separately from

the useful article into which it is incorporated.” Star Athletica, LLC v. Varsity Brands, Inc.,

137 S. Ct. 1002, 1007 (2017).

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For a general discussion of useful articles, see Chapter 900, Section 924. 
  313.4(F)  Mere Listing of Ingredients or Contents  
A mere listing of ingredients or contents is not copyrightable and cannot be registered 
with the U.S. Copyright Office. 37 C.F.R. § 202.1(a). 
Examples: 
•  A list of ingredients for a recipe. 
•  A list of components for a formula, compound, prescription, or the 
like. 
•  A list of musical tracks contained in a compact disc. 
•  A product label that merely lists the ingredients for the product, 
merely describes the product, or merely describes the contents of 
the product packaging. 
The Office may register a work that explains how to perform a particular activity, such 
as a cookbook or user manual, provided that the work contains a sufficient amount of 
text, photographs, artwork, or other copyrightable expression. However, the 
registration does not extend to any list of ingredients or contents that may be included 
in the work. See Publications International v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 
1996) (“We do not view the functional listing of ingredients as original within the 
meaning of the Copyright Act.”); see also Policy Decision on Copyrightability of Digitized 
Typefaces, 53 Fed. Reg. 38,110, 38,112 (Sept. 29, 1988) (explaining that “the explanation 
and illustration of recipes is copyrightable even though the end result – the food product 
– is not”). 
  313.4(G)  Blank Forms  
Blank forms that are designed for recording information and do not in themselves 
convey information are not copyrightable. 37 C.F.R. § 202.1(c). Likewise, the copyright 
law does not protect the ideas or principles behind a blank form, the systems or 
methods implemented by a form, or any functional layout, coloring, or design that 
facilitates the use of a form. See Baker v. Selden, 101 U.S. 99 (1879). 
Blank forms typically contain empty fields or lined spaces, as well as words or short 
phrases that identify the content that should be recorded in each field or space. 
Examples include, without limitation, time cards, graph paper, account books, diaries, 
bank checks, scorecards, address books, report forms, order forms, and the like. 37 
C.F.R. § 202.1(c). 
As a general rule, the Office will register a work of authorship that contains an 
appreciable amount of written or artistic expression, even if it contains a blank form 
that is designed for recording information. For example, bank checks may be registered 
if they contain sufficient pictorial authorship that decorates the form. Likewise, 
contracts, insurance policies, and other textual documents with “fill-in” spaces may be 

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registered if they contain a sufficient amount of expressive, literary authorship that is 
not standard or functional. However, the mere inclusion of a large number of terms on a 
blank form may not satisfy the originality requirement if those terms are part of a 
system for recording information, such as a medical diagnostic form. See 17 U.S.C. § 
102(b). 
When examining these types of works, the Office applies “a standard consistent with 
that applied to all works submitted for registration: does the work evidence an 
appreciable quantum of original, creative expression?” See Registration of Claims to 
Copyright: Notice of Termination of Inquiry Regarding Blank Forms, 45 Fed. Reg. 63,297 
(Sept. 24, 1980). In applying this standard, the Office focuses on the textual or pictorial 
expression that the author contributed to the work. In other words, does the form 
qualify as a literary work, a pictorial work, or a work that contains an original 
combination of literary and pictorial expression? If so, the Office will register the claim. 
In all cases, the registration covers only the original textual or pictorial expression that 
the author contributed to the work, but does not cover the blank form or other 
uncopyrightable elements that the form may contain. 
The Office cannot register the empty fields or lined spaces in a blank form. Likewise, the 
Office cannot register the words, short phrases, or other de minimis text that appears in 
the headings for a blank form, even if the applicant attempts to register the work as a 
compilation of uncopyrightable material. As discussed in Section 307, a compilation is a 
subset of the subject matter categories listed in Section 102(a) of the Copyright Act, 
rather than a separate and distinct category of authorship. In other words, a compilation 
may be registered, provided that the work as a whole falls within one or more of the 
congressionally established categories of authorship. A blank form that merely contains 
words, short phrases, or a de minimis amount of text does not satisfy this requirement 
because it does not qualify as a literary work, a pictorial work, a graphic work, or any of 
the other categories of works listed in Section 102(a). Cf. Registration of Claims to 
Copyright, 77 Fed. Reg. 37,605, 37,607 (June 22, 2012). 
If a blank form poses an extensive number of questions or contains an exhaustive 
checklist of information, the registration specialist may communicate with the applicant 
or may refuse registration if it appears that the applicant is asserting a claim in the 
ideas, principles, systems, or methods implemented by the form. 
  313.4(H)  Characters  
Although the copyright law does not protect the name or the general idea for a 
character, a work that depicts or describes a particular character may be registered if it 
contains a sufficient amount of original authorship.  
A registration for a visual art work, a literary work, or a work of the performing arts that 
depicts or describes a character covers the expression set forth in the deposit copy(ies), 
but it does not cover the character per se. In other words, the copyright in the registered 
work protects the author’s expression of the character, but it does not protect the mere 
concept of the character. The copyright in the character itself is limited to the artistic 
rendition of the character in visual form or the literary delineation of the character’s 
specific attributes in textual form. (The trademark law may provide additional 

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protection for the character’s name or other attributes if the character is sufficiently

distinctive and is used to identify the source of the trademark owner’s goods or

services.)

For a further discussion of characters, see Chapter 800, Section 804.3(B) and Chapter

900, Section 911.

313.4(I) Scènes à Faire

The copyright law does not protect stock characters, settings, or events that are

common to a particular subject matter or medium because they are commonplace and

lack originality. For example, the copyright for a work about the Hindenburg would not

cover elements that are “indispensable, or at least standard, in the treatment of” that

topic, such as scenes that take place in a German beer hall or characters who utter

common greetings of the period. See Hoehling, 618 F.2d at 979. The copyright for a work

about a police station in an urban slum would not cover elements that necessarily result

from the choice of that setting, such as scenes depicting drunks, prostitutes, vermin, and

derelict cars, or stock themes commonly linked to the genre of police fiction, such as foot

chases or the “familiar figure of the Irish cop.” See Walker v. Time Life Films, Inc., 784

F.2d 44, 50 (2d Cir. 1986). Likewise, the fact “[t]hat treasure might be hidden in a cave

inhabited by snakes, that fire might be used to repel the snake, that birds might frighten

an intruder in the jungle, and that a weary traveler might seek solace in a tavern . . . [are]

simply too general to be protectable.” See Zambito v. Paramount Pictures Corp., 613 F.

Supp. 1107, 1112 (E.D.N.Y 1985).

While scènes à faire cannot be registered by themselves, a work of authorship that

contains standard expressions or stock characters, settings, or events may be registered

provided that the work as a whole contains a sufficient amount of original expression.

313.4(J) Familiar Symbols and Designs

Familiar symbols and designs are not copyrightable and cannot be registered with the

U.S. Copyright Office, either in two-dimensional or three-dimensional form. 37 C.F.R. §

202.1(a). Likewise, the Office cannot register a work consisting of a simple combination

of a few familiar symbols or designs with minor linear or spatial variations, either in

two-dimensional or three-dimensional form. Examples of familiar symbols and designs

include, without limitation:

• Letters.

• Punctuation.

• Symbols typically found on a keyboard, such as asterisks, ampersands, and the like.

• Abbreviations.

• Musical notes and symbols.

• Numbers.

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•  Mathematical symbols. 
•  Currency symbols. 
•  Arrows and other directional or navigational symbols. 
•  Common representational symbols, such as a spade, club, heart, diamond, star, yin 
yang, fleur de lys, or the like. 
•  Common patterns, such as standard chevron, polka dot, checkerboard, or 
houndstooth designs. 
•  Well-known and commonly used symbols that contain a de minimis amount of 
expression or that are in the public domain, such as the peace symbol, gender 
symbols (♀ ♂), the symbols for “play, pause, stop, forward, back,” simple emoticons 
such as the typical smiley face (☺), or the like. 
•  Standard industry designs, such as the caduceus, the barber pole, food labeling 
symbols, hazard warning symbols, or the like.  
•  Familiar religious symbols such as crosses, stars, crescents, and the like. 
•  Common architecture moldings, such as the volute used to decorate Ionic and 
Corinthian columns. 
While familiar symbols and designs cannot be registered by themselves, a work of 
authorship that incorporates one or more of these elements into a larger design may be 
registered if the work as a whole contains a sufficient amount of creative expression. 
For additional information concerning familiar symbols and designs, see Chapter 900, 
Section 906.2. 
  313.4(K)  Mere Variations of Coloring  
Color is one of the basic building blocks for pictorial, graphic, and sculptural works. The 
U.S. Copyright Office may register an original combination or arrangement of colors if it 
results in a pictorial, graphic, or sculptural work that qualifies as an original work of 
authorship. See Copyright Registration for Colorized Versions of Black and White Motion 
Pictures, 52 Fed. Reg. 23,443, 23,445 (June 22, 1987). 
The Office cannot register a claim to copyright in color in and of itself or a system for 
matching pairs and sets of colors. See 17 U.S.C. § 102(b). Likewise, the Office cannot 
register mere variations in coloring, regardless of whether the variations are made by 
hand, by computer, or any other process. 37 C.F.R. § 202.1(a). If the author merely 
added or changed a few colors that appear in a preexisting work of authorship or merely 
added, changed, or combined expected or familiar sets or pairs of colors, the Office may 
communicate with the applicant or may refuse to register the claim. Similarly, the Office 
may communicate or refuse registration for a compilation of colors if the colors merely 
enhance the visual display of a chart, table, graph, device, or other article.  

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Examples: 
•  Creating a new version of a fabric design where the colors red and 
blue are substituted for the colors yellow and green. 
•  Producing three greeting cards containing the same visual and 
textual content where the only difference is that each card is printed 
in a different color. 
•  Making a few minor changes in a preexisting work of authorship, 
such as simple tone-overs or color overlays. 
•  Using color as a simple form of typographic ornamentation. 
•  Using color to enhance sonar imaging or x-rays, sonograms, 
echocardiograms, magnetic resonance imaging, or the like. 
•  Removing all the color from a preexisting work of authorship. 
For additional information concerning color, see Chapter 900, Section 906.3. 
  313.5  Specific Types of Works That May Contain Uncopyrightable Material  
The U.S. Copyright Office has adopted policies regarding the copyrightability of specific 
types of literary works, works of the performing arts, and works of the visual arts. 
For information concerning literary works that may be or may contain uncopyrightable 
material, see Chapter 700, Sections 707.1 (Numbers), 707.2 (Research), and 707.3 (Book 
Design). 
For information concerning works of the performing arts that may be or may contain 
uncopyrightable material, see Chapter 800: 
•  Common property musical scales and arpeggios (Section 802.5(A)). 
•  U.S. sound recordings fixed prior to February 15, 1972 (Section 803.5(D)).  
•  Social dances, simple routines, and other uncopyrightable movements (Sections 
805.5(B) and 806.5(B)). 
For information concerning works of the visual arts that may be or may contain 
uncopyrightable material, see Chapter 900: 
•  Geometric figures and shapes (Section 906.1). 
•  Bridges, canals, dams, tents, mobile homes, and other uncopyrightable structures 
(Section 926.2). 
•  Interior design and landscape design (Section 926.2). 

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•  Useful articles (Section 924).  
  313.6  Other Types of Works That Cannot Be Registered with the   
U.S. Copyright Office 
  313.6(A)  Foreign Works That Are Not Eligible for Copyright Protection  
in the United States 
As discussed in Section 304, a work of authorship may be registered, provided that it is 
eligible for copyright protection in the United States under Sections 104(a) or 104(b) of 
the Copyright Act. Works that do not satisfy these requirements are not protected by 
U.S. copyright law and cannot be registered with the U.S. Copyright Office. For more 
information concerning these requirements, see Chapter 2000, Section 2003. 
  313.6(B)  Unlawful Use of Preexisting Material in a Derivative Work, a  
Compilation, or a Collective Work  
Some derivative works, compilations, and collective works cannot be registered with the 
U.S. Copyright Office. Section 103(a) of the statute states that copyright protection for a 
compilation or derivative 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.” 17 U.S.C. § 103(a). This provision also applies to collective works because 
“the term ‘compilation’ includes collective works.” 17 U.S.C. § 101 (definition of 
compilation). 
Section 103(a) is intended to prevent “an infringer from benefiting, through copyright 
protection, from committing an unlawful act.” H.R. REP. NO. 94-1476, at 57 (1976), 
reprinted in 1976 U.S.C.C.A.N. at 5671. At the same time, it allows the author of a 
derivative work, a compilation, or a collective work to claim copyright in “those parts of 
the work that do not [unlawfully] employ the preexisting work.” Id. 
Ordinarily, the Office will not examine the preexisting material that appears in a 
derivative work, a compilation, or a collective work to determine whether that material 
is protected by copyright or whether it has been used in a lawful manner. However, the 
registration specialist may communicate with the applicant if the preexisting material 
has not been excluded from the claim and it is reasonably clear that the claimant may 
not own the copyright in that material, such as a mix tape containing a compilation of 
well-known sound recordings. The Office also may question derivative claims that 
appear to be unlawful and that are inseparable or intertwined with an underlying work, 
such as stage directions for a dramatic work. 
The Office may register a derivative work, a compilation, or a collective work that 
contains preexisting copyrightable material, provided that the author’s contribution to 
that work can be separated from the preexisting material. For example, an anthology of 
poetry may be registered as a collective work, even if the author accidentally included 
one poem that was unauthorized, because that poem could be severed from the 
anthology without affecting the lawful aspects of the collective work as a whole. By 
contrast, the Office may refuse registration if the preexisting material is inseparably 
intertwined with the compilation or the derivative work, such as an unauthorized 

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translation of a novel or an unauthorized arrangement of a song. See H.R. REP. NO. 
94-1476, at 57-58 (1976), reprinted in 1976 U.S.C.C.A.N. at 5671. 
  313.6(C)  Government Works  
313.6(C)(1)  U.S. Government Works  
Copyright protection under the Copyright Act is not available for “any work of the 
United States Government,” regardless of whether it is published or unpublished. 17 
U.S.C. § 105; see also H.R. REP. NO. 94-1476, at 58 (1976), reprinted in 1976 U.S.C.C.A.N. at 
5672.  
“[T]he bar on copyright protection for federal works . . . applies to works created by all 
federal ‘officer[s] or employee[s],’ without regard for the nature of their position or 
scope of their authority.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1509-10 
(2020). This includes works created by the President; Congress; the federal judiciary; 
federal departments, agencies, boards, bureaus, or commissions; or any other officer or 
employee of the U.S. federal government while acting within the course of his or her 
official duties. It also includes works prepared by an officer or employee of the 
government of the District of Columbia, the Commonwealth of Puerto Rico, or the 
organized territories under the jurisdiction of the federal government.  
If an applicant states that the U.S. government or any of its agencies, officers, or 
employees created the work while acting within the scope of their employment, the 
registration specialist may communicate with the applicant and may refuse registration, 
even if the claimant is a nongovernmental entity. 
There are several exceptions to these rules: 
•  Although works prepared by officers or employees of the U.S. government within 
the scope of their employment are not copyrightable, the federal government may 
receive and hold “copyrights transferred to it by assignment, bequest, or otherwise.” 
17 U.S.C. § 105. For example, a U.S. government agency may register a website 
created by a government contractor, provided that the contractor did not create the 
website for the agency as a work made for hire and provided that the contractor 
transferred the copyright in that work to that agency.  
•  Works prepared by officers or employees of the U.S. Postal Service, the Corporation 
for Public Broadcasting, the Public Broadcasting Services, or National Public Radio 
are not considered works of the U.S. government. See H.R. Rep. No. 94-1476, at 60 
(1976), reprinted in 1976 U.S.C.C.A.N. at 5674 (expressly exempting the U.S. Postal 
Service). 
•  Works prepared by officers or employees of the Smithsonian Institution are not 
considered works of the U.S. government if the author-employee was paid from the 
Smithsonian trust fund. 
•  Literary works prepared for publication in a scholarly press or journal by civilian 
faculty members of the National Defense University, United States Military 

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Academy, Army War College, United States Army Command and General Staff

College, United States Naval Academy, Naval War College, Naval Post Graduate

School, Marine Corps University, United States Air Force Academy, Air University,

Defense Language Institute, or United States Coast Guard Academy are not

considered U.S. government works. 17 U.S.C. § 105(b), (c) [sic].

• The U.S. Secretary of Commerce may secure copyright for a limited term not to

exceed five years in any standard reference data prepared or disseminated by the

National Technical Information Service. See 15 U.S.C. § 290e; H.R. Rep. No. 94-1476,

at 59-60 (1976), reprinted in 1976 U.S.C.C.A.N. at 5673.

• A work prepared by an officer or employee of the U.S. government may be

registered if the work was prepared at that person’s own volition and outside his or

her official duties, even if the subject matter focuses on the author’s work for the

government. See H.R. REP. NO. 94-1476, at 58 (1976), reprinted in 1976 U.S.C.C.A.N. at

5671.

313.6(C)(2) Government Edicts

Legislators and judges “empowered to speak with the force of law cannot be the authors

of—and therefore cannot copyright—the works they create in the course of their official

duties.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1504 (2020). This is known

as the “government edicts doctrine.” Id. at 1504, 1506.

The doctrine is based on the principle “that no one can own the law.” Id. at 1507. It “bars

the officials responsible for creating the law from being considered the ‘author[s]’ of

whatever work they perform in their capacity’ as lawmakers.” Id. (emphasis in original;

citation omitted). As a result, any “work that [a] judge or legislator produces in the

course of his [or her] judicial or legislative duties is not copyrightable,” regardless of

whether it “carries the force of law.” Id. at 1506, 1513.

The government edicts doctrine “applies to whatever work legislators perform in their

capacity as legislators. That of course includes final legislation, but it also includes

explanatory and procedural materials legislators create in the discharge of their

legislative duties.” Id. at 1508.

Likewise, judges “cannot be the ‘author’ of the works they prepare ‘in the discharge of

their judicial duties,’” because they “are vested with the authority to make and interpret

the law.” Id. at 1507 (citing Banks v. Manchester, 128 U.S. 244, 253 (1888)). The doctrine

applies to binding opinions issued by any federal, state, local, or territorial court. Id. It

also applies to any concurrence, dissent, syllabus, headnote, statement of the case, or

other “non-binding, explanatory legal materials” a judge may create “in his [or her]

judicial capacity.” Id. at 1504, 1507, 1509, 1511; Banks, 128 U.S. at 253.

The U.S. Copyright Office will not register a government edict that has been issued by

any federal, state, local, or territorial government, including legislative enactments,

judicial decisions, administrative rulings, public ordinances, or similar types of official

legal materials. Likewise, the Office will not register a government edict issued by any

foreign government or any translation prepared by a government employee acting

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within the course of his or her official duties. See Banks, 128 U.S. at 253 (“there has 
always been a judicial consensus, from the time of the decision in the case of Wheaton v. 
Peters, 8 Pet. 591, that no copyright could under the statutes passed by Congress, be 
secured in the products of the labor done by judicial officers in the discharge of their 
judicial duties”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.) (“no one can 
obtain the exclusive right to publish the laws of a state in a book prepared by him”).  
There is a limited exception to this rule. Section 104(b)(5) of the Act states that works 
first published by the United Nations or any of its specialized agencies, or first published 
by the Organization of American States are eligible for copyright protection in the 
United States. See 17 U.S.C. § 104(b)(5). 
The Office may register annotations or other explanatory materials that summarize or 
comment upon an edict of government, if they were “prepared by a private party, or a 
non-lawmaking official” “who lack[s] the authority to make or interpret the law,” and if 
they contain a sufficient amount of original authorship. Georgia, 140 S. Ct. at 1507, 1509, 
1510; Callaghan v. Myers, 128 U.S. 617, 647 (1888). 
Other than works of the United States Government, a work that does not constitute a 
government edict may be registered, even if it was prepared by an officer or employee 
of a state, local, territorial, or foreign government while acting within the course of his 
or her official duties. For example, the Office may register a tourist magazine written 
and published by Arizona’s department of tourism or a map created and published by 
the public transit authority for the city of Detroit. Georgia, 140 S. Ct. at 1510.  
  313.6(D)  Works in the Public Domain  
Works that are in the public domain in the United States cannot be registered with the 
U.S. Copyright Office. A copyrighted work enters the public domain in the United States 
when “its full copyright term has expired.” Golan v. Holder, 565 U.S. 302, 307 (2012). 
Works that do not comply with certain statutory formalities may also be in the public 
domain, such as U.S. works published without a copyright notice on or before March 1, 
1989, or U.S. works published or registered on or before December 31, 1963 that were 
not renewed in a timely manner. Likewise, works that are not copyrightable are in the 
public domain, such as works that have not been fixed in a tangible medium of 
expression or works that merely contain a de minimis amount of authorship. 
A derivative work, compilation, or collective work that contains public domain material 
may be registered, provided that the new work contains a sufficient amount of original 
authorship. The copyright in such works covers the compilation authorship or the new 
material that the author contributed to the derivative work, the compilation, or the 
collective work, but it “is independent of, and does not affect or enlarge the scope, 
duration, ownership, or subsistence of, any copyright protection in the [public domain] 
material.” 17 U.S.C. § 103(b). 
  314  Use of Protected Names, Characters, Slogans, Symbols, Seals,   
Emblems, and Insignia  
Occasionally, the U.S. Copyright Office receives works that contain names, characters, 
slogans, symbols, seals, emblems, or insignia that may be restricted by federal law, such 

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as “Olympic,” “Smokey Bear,” “Woodsy Owl,” “Give a Hoot, Don’t Pollute,” the 4-H Club 
Emblem, or the sign of the Red Cross. See, e.g., 18 U.S.C. §§ 700-716; 36 U.S.C. § 220506.  
If the work contains a sufficient amount of original authorship and if the federally 
protected material has been excluded from the claim, the registration specialist may 
register the claim without communicating with the applicant. By contrast, if the 
specialist is aware that the work contains federally protected material that has not been 
excluded from the claim, the specialist may notify the applicant that the material 
appears to be restricted and may ask the applicant whether that material has been used 
in a lawful manner. 
  315  Obscenity  
Pornographic works may be registered with the U.S. Copyright Office, provided that they 
contain a sufficient amount of original authorship.  
As a general rule, a registration specialist will not examine a work or authorship to 
determine whether it contains material that might be considered obscene. See Mitchell 
Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 858 (5th Cir. 1979) 
(concluding that the 1909 Act protects “all creative works, obscene or non-obscene, that 
otherwise meet the requirements of the [statute]” and that there is “no explicit or 
implicit bar to the copyrighting of obscene materials”). However, if a work contains 
material that appears to fall within the scope of the Child Protection Act, the specialist 
will refer the work to the Associate Register of Copyrights and Director of Registration 
Policy & Practice. If the Associate Register determines that the work clearly falls within 
the scope of Title 18, Sections 2251-2255, and if the Register of Copyrights concurs, the 
application, deposit copy(ies), and any other materials that have been submitted to the 
Office will be referred to the U.S. Department of Justice. See Operating Guidelines 
Regarding the Child Protection Act; Public Availability, 52 Fed. Reg. 10,177 (Mar. 30, 
1987). 
  316  Classified Material 
If the U.S. Copyright Office is aware that the deposit copy(ies) contain information that 
has been classified by the U.S. government, the registration specialist will refer the work 
to the Associate Register of Copyrights and Director of Registration Policy & Practice. 
The material should be held or disposed of in accordance with instructions from the 
Associate Register, and the examination or other processing of the material by the Office 
should be suspended until the matter has been resolved.  
 