Contents
901 What This Chapter Covers 1
902 Visual Arts Division 1
903 What Is a Visual Art Work? 2
903.1 Pictorial, Graphic, and Sculptural Works 2
903.2 Architectural Works 2
904 Fixation of Visual Art Works 3
905 Copyrightable Authorship in Visual Art Works 4
906 Uncopyrightable Material 5
906.1 Common Geometric Shapes 5
906.2 Familiar Symbols and Designs 7
906.3 Colors, Coloring, and Coloration 7
906.4 Typeface, Typefont, Lettering, Calligraphy, and Typographic Ornamentation 8
906.5 Spatial Format and Layout Design 9
906.6 Blank Forms 10
906.7 Naturally Occurring and Discovered Material 11
906.8 Mechanical Processes and Random Selection 11
906.9 Measuring and Computing Devices
12
906.10 Useful Articles and the Mechanical or Utilitarian Aspects of Works of Artistic
Craftsmanship 12
907 Derivative Visual Art Works 13
907.1 Copyrightable Authorship in Derivative Works 13
907.2 Permission to Use Preexisting Material 13
908 Jewelry Designs 14
908.1 What Is Jewelry? 14
908.2 Copyrightable Authorship in Jewelry 14
908.3 Application Tips for Jewelry 15
909 Photographic Works 16
909.1 Copyrightable Authorship in Photographs 16
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909.2 Subject Matter of Photographs 16
909.3 Uncopyrightable Material 16
909.3 (A) Photographic Reproductions, Digital Copying, and Digital Restoration 16
909.3(B) X-Rays, Medical Imaging, and Non-Medical Echo Sonography 18
910 Games 19
911 Characters 20
912 Cartoons, Comic Strips, and Comic Books 21
913 Prints 23
914 Trademarks, Logos, and Labels 23
914.1 Copyrightable Authorship in Trademarks, Logos, and Labels 23
914.2 Application Tips for Trademarks, Logos, and Labels 24
915 Catalogs 24
916 Retrospective Works and Exhibition Catalogs 26
917 Art Reproductions 26
917.1 Copyrightable Authorship in Art Reproductions 26
917.2 Application Tips for Art Reproductions 27
917.2(A) Distinguishing Art Reproductions from the Source Work and Identifying Material 27
917.2(B) Authorship Unclear 28
918 Installation Art 28
919 Maps 28
919.1 Copyrightable Authorship in Maps 28
919.2 Derivative Maps 29
920 Patterns, Stencils, and How-To Books 29
920.1 Patterns for Making Articles 30
920.2 Stencils and Templates 30
920.3 How-To Books, Project Books, and Crafts-Making Books 30
920.4 Application Tips for Patterns, Stencils, and How-To Books 30
921 Graphs, Charts, Tables, and Figures 31
922 Technical and Scientific Drawings 31
923 Models 32
923.1 Copyrightable Authorship in Models 32
924 Copyright Law Protects the Design Aspects of a Useful Article 34
924.1 What Is a Useful Article? 35
924.2 What Is the Design of a Useful Article? 36
924.3 The Separability Test 37
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924.3(A) The Separate-Identification Requirement 37
924.3(B) The Independent-Existence Requirement 38
924.3(C) Separable Features May Enhance the Functionality of the Useful Article 39
924.3(D) Separable Features May Cover the Entire Surface of a Useful Article 40
924.3(E) Separating the Design Feature from the Useful Article 40
924.3(F) The Overall Shape of a Useful Article Is Not Protectable 41
924.4 The Originality Test 42
924.5 Guidelines for Applying the Separability and Originality Tests 42
924.6 Application Tips for Registering the Design of a Useful Article 43
924.6(A) One Application Per Article 43
924.6(B) Completing the Application 43
924.6(C) Preparing the Identifying Material 44
925 Works of Artistic Craftsmanship 44
925.1 What Is a Work of Artistic Craftsmanship? 44
925.2 Copyrightable Authorship in Works of Artistic Craftsmanship 45
925.3 Works of Artistic Craftsmanship Distinguished from a Useful Article 45
926 Architectural Works 47
926.1 Architectural Works Distinguished from Technical Drawings 47
926.2 Copyrightable Authorship in Architectural Works 48
926.2(A) Standard Configurations 49
926.2(B) Functional Features 49
926.2(C) Building Designs Created Before December 1, 1990 49
926.3 Application Tips for Architectural Works 49
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901 What This Chapter Covers
This Chapter covers issues related to the examination and registration of visual art works. Visual
art works include a wide variety of pictorial, graphic, and sculptural works and architectural
works, which are discussed in more detail below.
•
For a general overview of the registration process, see Chapter 200.
•
For a general discussion of copyrightable authorship, see Chapter 300.
•
For a discussion of who may file an application, see Chapter 400.
•
For guidance in identifying the work that the applicant intends to register, see Chapter 500.
•
For guidance in completing the fields/spaces of a basic application, see Chapter 600.
•
For guidance on the filing fee, see Chapter 1400.
•
For guidance on submitting the deposit copy(ies), see Chapter 1500.
The U.S. Copyright Office uses the term “visual art works” and “works of the visual arts” to col-
lectively refer to the types of works listed in Sections 903.1 and 903.2 below. This Chapter does
not discuss “works of visual art,” which is a specific class of works that are eligible for protection
under the Visual Artists Rights Act. See 17 U.S.C. § 101 (definition of “work of visual art”), 106A.
For a definition of this term and for information concerning the Visual Arts Registry for such
works, see Chapter 2300, Section 2314.
Likewise, this Chapter does not discuss the registration and examination of mask works or ves-
sel designs, which are examined by the Visual Arts Division of the U.S. Copyright Office. For
information on the registration and examination of mask works and vessel designs, see Chapters
1200 and 1300.
902 Visual Arts Division
The U.S. Copyright Office’s Visual Arts Division (“VA”) handles the examination and registration
of all visual art works. The registration specialists in VA have experience reviewing a variety of
visual art works and specialize in these types of work.
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903 What Is a Visual Art Work?
For purposes of registration, the U.S. Copyright Office defines visual art works as (i) pictorial,
graphic, and sculptural works, and (ii) architectural works.
903.1 Pictorial, Graphic, and Sculptural Works
The most common types of visual art works are pictorial, graphic, and sculptural works. The Copy-
right Act protects a variety of works in these categories and specifically identifies the following:
•
Fine art (e.g., painting and sculpture).
•
Graphic art.
•
Photographs.
•
Prints.
•
Art reproductions.
•
Maps and globes.
•
Charts and diagrams.
•
Technical drawings, including architectural plans.
•
Models.
•
Applied art (i.e., the separable features of useful articles).
•
Works of artistic craftsmanship.
17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”).
“[A]n artistic feature of the design of a useful article” “is eligible for copyright protection only if
the feature (1) can be perceived as a two-dimensional or three-dimensional work of art separate
from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural
work – either on its own or fixed in some other tangible medium of expression – 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, 1014 (2017).
For information concerning the design aspects of a useful article, see Section 924. For informa-
tion concerning other types of pictorial, graphic, and sculptural works, see Sections 908 through
923, and Section 925.
903.2 Architectural Works
The Copyright Act protects certain architectural works, which are defined as “the design of a
building as embodied in any tangible medium of expression, including a building, architectural
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plans, or drawings.” 17 U.S.C. § 101. An architectural work “includes the overall form as well as
the arrangement and composition of spaces and elements in the design, but does not include
individual standard features.” Id. For detailed information concerning architectural works, see
Section 926.
904 Fixation of Visual Art Works
A visual art work must be “fixed” in a “tangible medium of expression” to be eligible for copy-
right protection. 17 U.S.C. § 102(a). The authorship may be new or may consist of derivative
authorship. The basic requirement is that the work must be embodied in some form that allows
the work to be “perceived, reproduced, or otherwise communicated for a period of more than a
transitory duration.” 17 U.S.C. § 101 (definition of “fixed”). The U.S. Copyright Office will register
visual art works that are embodied in a wide variety of two-dimensional and three-dimensional
forms, such as:
•
Canvas.
•
Paper.
•
Clay.
•
Stone.
•
Metal.
•
Prints.
•
Collages.
•
Photographic film.
•
Digital files.
•
Holograms and individual slides.
•
Edible materials, such as a molded chocolate rabbit or a frosting design on a cake.
•
Constructed buildings, architectural drawings, blueprints, or models depicting an architec-
tural work.
This is not an exhaustive list and the Office will consider other forms of embodiment on a case-
by-case basis. In particular, architectural works do not have to be constructed to be eligible for
copyright protection.
While most visual art works are fixed by their very nature (e.g., a sculpture, a painting, or a draw-
ing), there are some works that may not be sufficiently fixed to warrant registration. Specifically,
the Office cannot register a work created in a medium that is not intended to exist for more than
a transitory period, or a medium that is constantly changing.
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Most visual art works satisfy the fixation requirement, because the deposit copy(ies) or identify-
ing material submitted with the application usually indicate that the work is capable of being
perceived for more than a transitory duration. However, the fact that uncopyrightable material
has been fixed through reproduction does not make the underlying material copyrightable.
For example, a photograph of a fireworks display may be a copyrightable fixation of the pho-
tographic image, but the fireworks themselves do not constitute copyrightable subject matter.
As a general rule, applicants do not have to submit an original or unique copy of a visual art
work in order to register that work with the Office. In most cases, applicants may submit pho-
tographs or other identifying materials that provide the Office with a sufficient representation
or depiction of the work for examination purposes.
When completing an application, applicants should accurately identify the work that is being
submitted for registration, particularly when submitting identifying material. For example, if
the applicant intends to register a sculpture and submits a photograph of the sculpture as the
identifying material, the applicant should expressly state “sculpture” in the application. Other-
wise, it may be unclear whether the applicant intends to register the photograph or the sculpture
shown in the photograph.
Before submitting identifying material for a published visual art work, applicants should deter-
mine whether the work is subject to the best edition requirement. As a general rule, an applicant
should submit the “best edition” if the work was published in the United States on or after Janu-
ary 1, 1978. The criteria used to identify the best edition of a particular work are listed in the
“Best Edition Statement,” which is set forth in Appendix B to Part 202 of the Office’s regulations.
It is also posted on the Office’s website in Best Edition of Published Copyrighted Works for the
Collections of the Library of Congress (Circular 7b). For specific deposit requirements for dif-
ferent types of visual art works, see Chapter 1500, Section 1509.3.
905 Copyrightable Authorship in Visual Art Works
The U.S. Copyright Office may register a visual art work (i) if it is the product of human author-
ship, (ii) if it was independently created (meaning that the work was not merely copied from
another source), and (iii) if it contains a sufficient amount of original pictorial, graphic, sculp-
tural, or architectural authorship. The Office reviews visual art works consistent with the general
principles set forth in Chapter 300 (Copyrightable Authorship: What Can Be Registered), as well
as the guidelines described in this Chapter.
“In order to be acceptable as a pictorial, graphic, or sculptural work, the work must embody some
creative authorship in its delineation or form.” 37 C.F.R. § 202.10(a). The author’s intentions
concerning the use of the work, or the number of copies made is irrelevant to this determination.
The fact that the work may be protected by a utility or design patent is also irrelevant. See id.
In all cases, the work “must be original, that is, the author’s tangible expression of his [or her]
ideas. Such expression, whether meticulously delineating the model or mental image or convey-
ing the meaning by modernistic form or color, is copyrightable.” Mazer v. Stein, 347 U.S. 201,
214 (1954).
In the case of two-dimensional works, original authorship may be expressed in a variety of ways,
such as the linear contours of a drawing, the design and brush strokes of a painting, the diverse
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fragments forming a collage, the pieces of colored stone arranged in a mosaic portrait, among
other forms of pictorial or graphic expression.
In the case of three-dimensional works, original authorship may be expressed in many ways,
such as carving, cutting, molding, casting, shaping, or otherwise processing material into a three-
dimensional work of sculpture.
Likewise, original authorship may be present in the selection, coordination, and/or arrange-
ment of images, words, or other elements, provided that there is a sufficient amount of creative
expression in the work as a whole.
In all cases, a visual art work must contain a sufficient amount of creative expression. Merely
bringing together only a few standard forms or shapes with minor linear or spatial variations
does not satisfy this requirement.
The Office will not register works that consist entirely of uncopyrightable elements (such as
those discussed in Chapter 300, Section 313 and Section 906 below) unless those elements have
been selected, coordinated, and/or arranged in a sufficiently creative manner. In no event can
registration rest solely upon the mere communication in two- or three-dimensional form of an
idea, method of operation, process, or system. In each case, the author’s creative expression must
stand alone as an independent work apart from the idea which informs it. 17 U.S.C. § 102(b);
Mazer, 347 U.S. at 217 (“[A] copyright gives no exclusive right to the art disclosed; protection is
given only to the expression of the idea – not the idea itself.”).
For more information on copyrightable authorship, see Chapter 300 (Copyrightable Authorship:
What Can Be Registered).
906 Uncopyrightable Material
Section 102(a) of the Copyright Act states that copyright protection only extends to “original
works of authorship.” 17 U.S.C. § 102(a). Works that have not been fixed in a tangible medium of
expression, works that have not been created by a human being, and works that are not eligible
for copyright protection in the United States do not satisfy this requirement. Likewise, the copy-
right law does not protect works that do not constitute copyrightable subject matter or works
that do not contain a sufficient amount of original authorship.
The U.S. Copyright Office will register a visual art work that includes uncopyrightable material
if the work as a whole is sufficiently creative and original. Some of the uncopyrightable elements
that are commonly found in visual art works are discussed in Sections 906.1 through 906.10
below. For a general discussion of uncopyrightable material, see Chapter 300, Section 313.
906.1 Common Geometric Shapes
The Copyright Act does not protect common geometric shapes, either in two-dimensional or
three-dimensional form. There are numerous common geometric shapes, including, without
limitation, straight or curved lines, circles, ovals, spheres, triangles, cones, squares, cubes, rect-
angles, diamonds, trapezoids, parallelograms, pentagons, hexagons, heptagons, octagons, and
decagons.
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Generally, the U.S. Copyright Office will not register a work that merely consists of common
geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is
sufficiently creative.
Examples:
•
Geoffrey George creates a drawing depicting a standard pentagon with no
additional design elements. The registration specialist will refuse to register
the drawing because it consists only of a simple geometric shape.
•
Georgina Glenn painstakingly sculpts a perfectly smooth marble sphere over
a period of five months. The registration specialist will refuse to register this
work because it is a common geometric shape and any design in the marble
is merely an attribute of the natural stone, rather than a product of human
expression.
•
Grover Gold creates a painting of a beach scene that includes circles of varying
sizes representing bubbles, striated lines representing ocean currents, as well
as triangles and curved lines representing birds and shark fins. The registra-
tion specialist will register the claim despite the presence of the common
geometric shapes.
•
Gloria Grimwald paints a picture with a purple background and evenly
spaced white circles:
The registration specialist will refuse to register this claim because simple
geometric symbols are not eligible for copyright protection, and the combi-
nation of the purple rectangle and the standard symmetrical arrangement of
the white circles does not contain a sufficient amount of creative expression
to warrant registration.
•
Gemma Grayson creates a wrapping paper design that includes circles, tri-
angles, and stars arranged in an unusual pattern with each element portrayed
in a different color:
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The registration specialist will register this claim because it combines multiple
types of geometric shapes in a variety of sizes and colors, culminating in a
creative design that goes beyond the mere display of a few geometric shapes
in a preordained or obvious arrangement.
906.2 Familiar Symbols and Designs
Familiar symbols and designs are not protected by the Copyright Act. 37 C.F.R. § 202.1(a). Like-
wise, the copyright law does not protect mere variations on a familiar symbol or design, either in
two or three-dimensional form. For representative examples of symbols or designs that cannot
be registered with the U.S. Copyright Office, see Chapter 300, Section 313.4(J).
A work that includes familiar symbols or designs may be registered if the registration special-
ist determines that the author used these elements in a creative manner and that the work as a
whole is eligible for copyright protection.
Examples:
•
Francis Ford created a sketch of the standard fleur de lys design used by the
French monarchy. The registration specialist may refuse to register this claim
if the work merely depicts a common fleur de lys.
•
Samantha Stone drew an original silhouette of Marie Antoinette with a back-
drop featuring multiple fleur de lys designs. The registration specialist may
register this work because it incorporates an original, artistic drawing in ad-
dition to the standard fleur de lys designs.
906.3 Colors, Coloring, and Coloration
Mere coloration or mere variations in coloring alone are not eligible for copyright protection.
37 C.F.R. § 202.1(a).
Merely adding or changing one or relatively few colors in a work, or combining expected or
familiar pairs or sets of colors is not copyrightable, regardless of whether the changes are
made by hand, computer, or some other process. This is the case even if the coloration makes
a work more aesthetically pleasing or commercially valuable. For example, the U.S. Copyright
Office will not register a visual art work if the author merely added relatively few colors to
a preexisting design or simply created multiple colorized versions of the same basic design.
Copyright Registration for Colorized Versions of Black and White Motion Pictures, 52 Fed.
Reg. 23,443, 23,444 (June 22, 1987). Likewise, the Office generally will not register a visual art
work if the author merely applied colors to aid in the visual display of a graph, chart, table,
device, or other article.
The Office understands that color is a major element of design in visual art works, and the Office
will allow an applicant to include appropriate references to color in an application. For instance,
if an applicant refers to specific colors or uses terms such as “color,” “colored,” “colors,” “coloring,”
or “coloration,” the registration specialist generally will not reject the claim if the work contains
a sufficient amount of creative authorship aside from the coloration alone.
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Examples:
•
Cleo Camp took a photograph of a tree and digitally edited the image to add
new shades of red and blue. Cleo submitted an application to register the
altered photograph and described her authorship as “original photograph
digitally edited to add new shades of blue and red in certain places.” The
registration specialist will register the claim because the creativity in the pho-
tograph, together with the alteration of the colors, is sufficiently creative.
•
Charles Carter took a digital image of Leonardo da Vinci’s Mona Lisa and
added different hair color, colored nail polish, stylized clothing, and darkened
skin. Charles submitted an application to register the image, and described his
authorship as “changed public domain Mona Lisa to green and pink streaked
hair; purple nail polish; prisoner-striped black-white clothing; and darkened
rouge on cheeks.” The registration specialist will register the work because the
changes in color are sufficient to constitute a new work of authorship.
•
Clara Connor found a black and white photograph that is in the public do-
main. She altered the image by adding a variety of colors, shades, and tones to
make it appear as if the photo was taken in a different season. Clara submitted
an application to register the revised photograph and in the Author Created
and New Material Included fields she described her authorship as “adapted
public domain black-white image by adding different colors, shades, tones, in
various places of derivative work.” The registration specialist may register the
work if Clara made sufficient changes to the preexisting photograph.
•
Chris Crisp purchased a coloring book and colored the images with water-
colors. He submitted an application to register the work and described his
authorship in the Author Created and New Material Included fields as “added
selected colors to pictures in someone else’s coloring book.” The registration
specialist may refuse to register the work if the changes were dictated by the
coloring book and the addition of color was not sufficiently creative.
•
Colette Card registered a fabric design called “Baby Girl Fabric,” which con-
tains a pink background with stylized images of cribs, rattles, and pacifiers.
Colette then created a fabric design called “Baby Boy Fabric” that is identical
to the “Baby Girl Fabric” design, except that the background color is blue in-
stead of pink. Colette attempts to register the “Baby Boy Fabric,” disclaiming
the prior registration for the “Baby Girl Fabric.” The registration specialist will
refuse to register the blue variation because it is identical to the preexisting
“Baby Girl Fabric” design aside from the mere change in background color.
906.4 Typeface, Typefont, Lettering, Calligraphy, and Typographic Ornamentation
As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are
not registrable. 37 C.F.R. § 202.1(a), (e). These elements are mere variations of uncopyrightable
letters or words, which in turn are the building blocks of expression. See id. The Office typically
refuses claims based on individual alphabetic or numbering characters, sets or fonts of related
characters, fanciful lettering and calligraphy, or other forms of typeface. This is true regardless
of how novel and creative the shape and form of the typeface characters may be.
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Examples:
•
Felicia Frost creates a font called “Pioneer Living” that evokes historical
“Wanted: Dead or Alive” posters. The registration specialist will refuse to
register this font because it is a building block of writing.
•
Calliope Cash creates a textile fabric consisting of a vertically striped grass
cloth and a traditional Chinese proverb. Each character is painted on a sepa-
rate stripe in standard, unembellished calligraphy. The registration specialist
will refuse to register this fabric design because the calligraphy consists of
standard Chinese characters, and the simple arrangement of characters on
vertical stripes and the choice of grass cloth does not add sufficient creativity
to warrant registration.
There are some very limited cases where the Office may register some types of typeface, typefont,
lettering, or calligraphy, such as the following:
•
Pictorial or graphic elements that are incorporated into uncopyrightable characters or used
to represent an entire letter or number may be registrable. Examples include original pictorial
art that forms the entire body or shape of the typeface characters, such as a representation of
an oak tree, a rose, or a giraffe that is depicted in the shape of a particular letter.
•
Typeface ornamentation that is separable from the typeface characters is almost always an
add-on to the beginning and/or ending of the characters. To the extent that such flourishes,
swirls, vector ornaments, scrollwork, borders and frames, wreaths, and the like represent
works of pictorial or graphic authorship in either their individual designs or patterned rep-
etitions, they may be protected by copyright. However, the mere use of text effects (includ-
ing chalk, popup papercraft, neon, beer glass, spooky-fog, and weathered-and-worn), while
potentially separable, is de minimis and not sufficient to support a registration.
The Office may register a computer program that creates or uses certain typeface or typefont
designs, but the registration covers only the source code that generates these designs, not the
typeface, typefont, lettering, or calligraphy itself. For a general discussion of computer programs
that generate typeface designs, see Chapter 700, Section 723.
To register the copyrightable ornamentation in typeface, typefont, lettering, or calligraphy, the
applicant should describe the surface decoration or other ornamentation and should explain
how it is separable from the typeface characters. The applicant should avoid using unclear terms,
such as “typeface,” “type,” “font,” “letters,” “lettering,” or similar terms.
906.5 Spatial Format and Layout Design
As a general rule, the U.S. Copyright Office will not accept vague claims in “format” or “layout.”
The general layout or format of a book, a page, a website, a webpage, a poster, a form, etc., is not
copyrightable, because it is merely a template for expression and does not constitute original
expression in and of itself. If the applicant uses the terms “layout” and/or “format” in the ap-
plication, the registration specialist will communicate with the applicant to clarify the claim.
Copyright protection may be available for the author’s original selection and/or arrangement of
specific content if it is sufficiently creative, but the copyright does not extend to the organization
without that particular content.
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Examples:
•
Loretta Leonard published a series of books on bird watching. Each book has
a two-inch right margin and a half-inch left margin, with the text appearing
in two columns of differing lengths. Loretta submits an application to register
the template for this layout. The registration specialist will refuse to register
this claim because the layout of these books does not contain a sufficient
amount of originality to be protected by copyright law.
•
Fred Foster publishes a one-page newsletter titled Condo Living that provides
information for residents of his condominium complex. Each issue contains
the name of the newsletter, a drawing of the sun rising over the complex,
two columns reserved for text, and a box underneath the columns reserved
for photographs. Fred attempts to register the layout for his newsletter. The
registration specialist will reject the claim in layout, but may register the il-
lustration if it is sufficiently creative.
906.6 Blank Forms
The U.S. Copyright Office will not register blank forms, which are solely designed for recording
information and do not convey information, regardless of how they are described in an appli-
cation. 37 C.F.R. § 202.1(c). Examples of blank forms include time cards, graph paper, account
books, diaries, bank checks, scorecards, address books, report forms, order forms, and vouchers.
Id.
Blank forms are not copyrightable because they merely reflect and implement underlying pro-
cedures, processes, systems, methods, concepts, or principles. 17 U.S.C. § 102(b); Baker v. Selden,
101 U.S. 99 (1879). Likewise, the Office will refuse to register claims based solely on the arrange-
ment, spacing, or juxtaposition of standard text on a blank form. Registration of Claims to
Copyright; Notice of Termination of Inquiry Regarding Blank Forms, 45 Fed. Reg. 63,297
(Sept. 24, 1980). However, a registration specialist may register literary or visual arts content
that has been added to a blank form if it is copyrightable, such as artwork that decorates the
form or literary elements that describe or explain how to complete the form. See id. at 63,298.
Examples:
•
Brenda Bland creates a color-coded daily journal. The journal includes six
columns with typical headings and multiple colors to aid the user in orga-
nizing content. The registration specialist will refuse to register this journal
because it is a blank form that does not contain a sufficient amount of literary
or pictorial authorship to support a registration.
•
Bernice Brown creates a daily diary that includes six columns with typical
headings and graphic artwork along the border of each page. The registra-
tion specialist will refuse to register the columns and headings because it is
merely a blank form, but may register the decorative border if it is sufficiently
creative.
•
Blythe Burn files an application to register a “graphic aid for diagnosing Al-
zheimer’s disease.” The deposit copy consists of a blank form for recording
patient data. The form contains eight boxes with various questions that are
intended to identify symptoms of this disease. The registration specialist will
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refuse the claim in “graphic aid” and may refer the claim to the Literary Di-
vision to determine whether the textual authorship supports a claim in a
literary work.
906.7 Naturally Occurring and Discovered Material
Because human authorship is required for copyright protection, the U.S. Copyright Office will
not register naturally occurring objects or materials that are discovered in nature. This includes
natural objects or materials with standard wear or acute breaks or fissures resulting from weather
conditions or other natural phenomena, such as water currents, wind, rain, lightning, sunlight,
heat, or cold. Similarly, the Office will refuse to register a work that is created through naturally
occurring processes or events, such as the resulting visual appearance of an object or liquid when
different chemical elements interact with each other.
Examples:
•
Nina Nine found a piece of driftwood that was smoothed by ocean currents.
She carved an intricate seagull design in the side of the driftwood, polished it,
and submitted an application to register the overall work. Although there is
no human authorship in the driftwood itself, the registration specialist may
register the seagull carving if it is sufficiently creative.
•
Felipe French found a stone with deep grooves. Felipe brought the stone to
his studio, polished it, mounted it on a brass plate, and submitted it for regis-
tration. The registration specialist will refuse registration because the stone’s
appearance was the result of a naturally occurring phenomenon and the pol-
ishing and mounting were merely de minimis.
•
Natalia Night creates a sticker made of two clear plastic sheets bonded togeth-
er with a small amount of colored liquid petroleum between the sheets. Due
to the way petroleum naturally behaves, any slight pressure on the outside of
the sticker creates undulating patterns and shapes, no two of which are ever
identical. The registration specialist will refuse to register this sticker because
the specific outlines and contours of the patterns and shapes formed by the
liquid petroleum were not created by Natalia, but instead were created by a
naturally occurring phenomenon.
906.8 Mechanical Processes and Random Selection
The copyright law only protects works of authorship that are created by human beings. Works
made through purely mechanical processes or with an automated selection and arrangement are
not eligible for copyright protection without sufficient human authorship. The U.S. Copyright
Office will refuse to register a claim in a work that is created through the operation of a machine
or process without sufficient human interaction, even if the design is randomly generated.
Example:
•
Megan Mott developed linoleum flooring with a random confetti design. The
design was created by a purely mechanical process that randomly distributed
material on the surface of the linoleum. The registration specialist will refuse
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to register this design because it was produced by a mechanical process and a
random selection and arrangement.
906.9 Measuring and Computing Devices
Devices that compute, measure, and record data are useful articles. Common examples of such
devices include slide rulers, wheel dials, depth gauges, dive computers, echo-sounders, and per-
petual calendar designs. These types of devices do not contain expressive authorship and are
merely designed to calculate and produce facts, data, or other useful information. As such, they
are not copyrightable. See 37 C.F.R. § 202.1(d).
The U.S. Copyright Office may register pictorial, graphic, or sculptural features that have been
applied to a measuring or computing device, but only if those features are separable from the
article. For example, a logo appearing on a scale, or a fanciful graphic on a telescope may be
registered if they incorporate “pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”). For a general discussion
of useful articles, see Section 924.
Likewise, textual or artistic material that explains or illustrates a device and its use may be pro-
tectable if it is sufficiently creative, as long as it does not itself perform the actual useful function
of the device. For example, a technical drawing with significant text and pictures that shows how
to use a device may be registrable. But the registration for that drawing would extend only to the
descriptive or illustrative authorship and would not extend to the concept, physical design, and
use of the device itself. See 17 U.S.C. § 113(b).
When asserting a claim in an instructional manual or other text or images that explain or illus-
trate a device, applicants should use terms that specifically describe the expressive authorship
that the author contributed to the work, such as “text of description of device,” “text of instruc-
tions,” “technical diagrams,” or “photographs of device.”
Applicants should avoid using the terms “device,” “equipment,” “sculpture,” “housing,” or “con-
tainer” to refer to content that appears on the face or surface of the device. Applicants should
avoid using the terms “format,” “layout,” and “compilation” to refer to the overall design features
or to the overall combination of content on the face or surface of the device. Applicants also
should avoid using vague terms, such as “entire work.”
906.10 Useful Articles and the Mechanical or Utilitarian Aspects of Works of Artistic
Craftsmanship
The copyright law does not protect useful articles. 17 U.S.C. § 101 (definition of pictorial, graphic,
and sculptural works). But it does protect two- or three-dimensional artistic features that have been
incorporated into the design of a useful article, if those features are separable from the article. Id.
Copyright also protects the creative form of a work of artistic craftsmanship, but it does not
protect the “mechanical or utilitarian aspects” of such works.” Id.
For a definition and detailed discussion of the legal standards for evaluating copyrightable author-
ship in the design of a useful article or a work of artistic craftsmanship, see Sections 924 and 925.
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907 Derivative Visual Art Works
907.1 Copyrightable Authorship in Derivative Works
A derivative visual art work is a work based on or derived from one or more preexisting works.
A derivative work may be registered if the author of that work contributed a sufficient amount
of new authorship to create an original work of authorship. The new material must be original
and copyrightable in itself.
Examples of visual art works that may be registered as derivative works include:
•
Sculptures based on drawings.
•
Drawings based on photographs.
•
Lithographs based on paintings.
•
Books of maps based on public domain maps with additional features.
Examples of works that cannot be registered as derivative works, because they contain no new
authorship or only a de minimis amount of authorship include the following types of visual
art works:
•
Photocopies and digital scans of works.
•
Mere reproductions of preexisting works.
For a general discussion of the legal standard for determining whether a derivative work contains
a sufficient amount of original expression to warrant registration, see Chapter 300, Section 311.
907.2 Permission to Use Preexisting Material
Authors often incorporate material created by third parties into their visual art works, such as
a third party photograph that is used in a collage or third party clip art that is used in a logo.
Generally, if the third party material is protected by copyright, the applicant must exclude that
material from the claim using the procedure described in Chapter 600, Section 621.8. However,
the applicant does not have to disclaim uncopyrightable elements, such as letters of the alphabet
or geometric shapes.
The U.S. Copyright Office generally does not investigate the copyright status of preexisting
material or investigate whether it has been used lawfully. However, the registration specialist
may communicate with the applicant to determine whether permission was obtained where a
recognizable preexisting work has been incorporated into a visual art work. The applicant may
clarify the lawful use of preexisting material by including a statement to that effect in the Note
to Copyright Office field of the online application or in a cover letter submitted with the paper
application. If it becomes clear that preexisting material was used unlawfully, the registration
specialist will refuse to register the claim.
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Example:
•
Theresa Tell creates a collage that combines her own artwork with logos from
a number of famous companies. She files an application to register her “two-
dimensional artwork.” Depending on the facts presented, the registration spe-
cialist may ask the applicant to exclude the logos from the claim by stating
“preexisting logos incorporated” in the Material Excluded field. In addition,
the specialist may ask Theresa to limit her claim by stating “selection and ar-
rangement of preexisting logos with new two-dimensional artwork added” in
the New Material Included field.
For more information on derivative works incorporating third party content, see Chapter 300,
Section 313.6(B).
908 Jewelry Designs
Jewelry designs are typically protected under the U.S. copyright law as sculptural works, although
in rare cases they may be protected as pictorial works. This Section discusses certain issues that
commonly arise in connection with such works.
908.1 What Is Jewelry?
Jewelry designs include any decorative article that is intended to be worn as a personal adornment,
regardless of whether it is hung, pinned, or clipped onto the body (such as necklaces, bangles, or
earrings) or pinned, clipped, or sewn onto clothing (such as brooches, pins, or beaded motifs).
Jewelry also includes jeweled and beaded designs that may be applied to garments, footwear, and
accessories (such as hatpins, hairpins, hair combs, and tiepins). However, when these types of
works are fixed onto a useful article, they may be registered only if they are separable from the
utilitarian aspects of that article.
908.2 Copyrightable Authorship in Jewelry
Jewelry designs may be created in a variety of ways, such as carving, cutting, molding, casting, or
shaping the work, arranging the elements into an original combination, or decorating the work
with pictorial matter, such as a drawing or etching.
The U.S. Copyright Office may register jewelry designs if they are sufficiently creative or expres-
sive. The Office will not register pieces that, as a whole, do not satisfy this requirement, such as
mere variations on a common or standardized design or familiar symbol, designs made up of
only commonplace design elements arranged in a common or obvious manner, or any of the
mechanical or utilitarian aspects of the jewelry. Common de minimis designs include solitaire
rings, simple diamond stud earrings, plain bangle bracelets, simple hoop earrings, among other
commonly used designs, settings, and gemstone cuts.
Examples:
•
Janine Jackson creates a brooch consisting of three parallel rows of sap-
phires. The registration specialist will refuse registration because the de-
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sign is common and there is only a de minimis amount of authorship in the
arrangement of stones.
•
Jeremiah Jones creates a necklace consisting of a standard cross on a black silk
cord with a silver clasp. The registration specialist will refuse to register this
work because it consists of functional elements (e.g., a silk cord and a silver
clasp) and a familiar symbol (the standard cross).
908.3 Application Tips for Jewelry
When preparing the identifying material for a jewelry design (which may consist of photographs
or drawings) the applicant should include all of the copyrightable elements that the applicant
intends to register. This is important because the registration specialist can examine only the
designs that are actually depicted in the identifying material. If the applicant wants the registra-
tion to cover more than just the face of a jewelry design, the identifying material should depict
the design from different angles. Additionally, if the applicant wants the registration to cover
part of the design or details that are relatively small, the applicant should make sure that those
portions are clearly visible in the identifying material.
When evaluating a jewelry design for copyrightable authorship, the registration specialist will
consider both the component elements of the design and the design as a whole. In making this
determination, the specialist may consider the following aspects of a jewelry design:
•
The shapes of the various elements (e.g., gemstones, beads, metal pieces, etc.).
•
The use of color to create an artistic design (although color alone is generally insufficient).
•
Decoration on the surface of the jewelry (e.g., engraved designs, variations of texture, etc.).
•
The selection and arrangement of the various elements.
The following aspects of jewelry generally are not copyrightable and are not considered in ana-
lyzing copyrightability:
•
Faceting of individual stones (i.e., gem-cutting).
•
Purely functional elements, such as a clasp or fastener.
•
Common or symmetrical arrangements.
As a general rule, if the shape or decoration of a particular element contains enough original
authorship to support a registration, the specialist will register the claim. If not, the specialist
will consider other factors, such as the selection, coordination, and/or arrangement of elements,
as well as the degree of symmetry.
When evaluating the copyrightability of a jewelry design, the specialist may consider the number
of elements in the design. More elements may weigh in favor of copyrightability, although a work
containing multiple elements may be uncopyrightable if the elements are repeated in a standard
geometric arrangement or a commonplace design. A work containing only a few elements may
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be copyrightable if the decoration, arrangement, use of color, shapes, or textures are sufficient
to support a claim.
909 Photographic Works
The U.S. copyright law protects photographs as pictorial works. This Section discusses certain
issues that commonly arise in connection with such works.
909.1 Copyrightable Authorship in Photographs
As with all copyrighted works, a photograph must have a sufficient amount of creative expression
to be eligible for registration. The creativity in a photograph may include the photographer’s
artistic choices in creating the image, such as the selection of the subject matter, the lighting, any
positioning of subjects, the selection of camera lens, the placement of the camera, the angle of
the image, and the timing of the image.
Example:
•
The Office receives ten applications, one from each member of a local pho-
tography club. All of the photographs depict the Washington Monument and
all of them were taken on the same afternoon. Although some of the photo-
graphs are remarkably similar in perspective, the registration specialist will
register all of the claims, because each photographer selected the angle and
positioning of his or her photograph, among other creative choices.
909.2 Subject Matter of Photographs
To be eligible for copyright protection, the subject of the photograph does not need to be copy-
rightable. A photograph may be protected by copyright and registered with the U.S. Copyright
Office, even if the subject of the photograph is an item or scene that is uncopyrightable or in
the public domain.
Example:
•
Phoebe Pool takes a photograph of a mountain range, selecting the angle,
distance, and lighting for the image. The registration specialist will register
the work even though the mountain range itself is not copyrightable.
909.3 Uncopyrightable Material
909.3 (A) Photographic Reproductions, Digital Copying, and Digital Restoration
Although most photographs warrant copyright protection, the U.S. Copyright Office will not
register photographs that do not display a sufficient amount of creative expression. A photo-
graph that is merely a “slavish copy” of a painting, drawing, or other public domain or copy-
righted work is not eligible for registration. The registration specialist will refuse a claim if it is
clear that the photographer merely used the camera to copy the source work without adding any
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creative expression to the photo. Similarly, merely scanning and digitizing existing works does
not contain a sufficient amount of creativity to warrant copyright protection.
Example:
•
Pamela Patterson takes a high resolution photograph of Leonardo da Vinci’s
Mona Lisa. The photograph is virtually identical to the painting. The regis-
tration specialist will refuse to register the photograph, because it is a slavish
copy of a work that is in the public domain. See, e.g., Bridgeman Art Library,
Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 196-97 (S.D.N.Y. 1999).
The Office often receives applications to register preexisting works that have been restored to
their original quality and character. Merely restoring a damaged or aged photograph to its origi-
nal state without adding a sufficient amount of original, creative authorship does not warrant
copyright protection.
The registration specialist will analyze on a case-by-case basis all claims in which the author used
digital editing software to produce a derivative photograph or artwork. Typical technical altera-
tions that do not warrant registration include aligning pages and columns; repairing faded print
and visual content; and sharpening and balancing colors, tint, tone, and the like, even though the
alterations may be highly skilled and may produce a valuable product. If an applicant asserts a
claim in a restoration of or touchups to a preexisting work, the registration specialist generally
will ask the applicant for details concerning the nature of changes that have been made. The
specialist will refuse all claims where the author merely restored the source work to its original
or previous content or quality without adding substantial new authorship that was not present
in the original.
The specialist may register a claim in a restored or retouched photograph if the author added a
substantial amount of new content, such as recreating missing parts of the photograph or using
airbrushing techniques to change the image. As a general rule, applicants should use terms such
as “photograph” or “2-D artwork” to describe this type of authorship, and should avoid using
terms such as “digital editing,” “touchup,” “scanned,” “digitized,” or “restored.”
Examples:
•
Sarah Smith discovers a box of old family photographs in her great-grand
-
mother’s attic. She scans them into her computer and uses software that au-
tomatically smoothens the creases in the images. Sarah files an application
to register a claim for her own authorship in the altered photographs. The
registration specialist will refuse to register the claim, because the use of au-
tomated software to smooth preexisting photographs was de minimis.
•
Dave Daniel submits an application claiming “photograph and two-dimen-
sional artwork.” The registration specialist asks Dave to clarify the nature of
the two-dimensional artwork that he contributed to this work. Dave explains
that he took a photograph and then digitally touched up several parts of
his image. He also explains that he improved the color, tone, and temper;
removed noise imperfections inherent in the film; and adjusted aspects to bal-
ance the photograph. The specialist will register the claim in the “photograph,”
because this term accurately describes the photograph and the authorship
involved in editing the original image. The specialist will ask for permission
to remove the claim in “two-dimensional artwork” because the work contains
no additional artwork aside from the photograph itself.
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909.3(B) X-Rays, Medical Imaging, and Non-Medical Echo Sonography
As a general rule, the U.S. Copyright Office will not register medical x-rays or imaging, regard-
less of whether they are claimed on an application as photographs, images, artwork, or graph-
ics. These types of images do not typically possess a sufficient degree of creativity to sustain a
copyright claim.
note:
Medical x-rays or imaging are not considered useful articles for purposes of registration
because they convey information. 17 U.S.C. § 101 (definition of “useful article”). As such, they are
not subject to the separability test described in Section 924.3.
In most cases, x-rays or other medical images are produced without any creative input from
a human author. And the appearance of the resulting image is dictated entirely by functional
requirements, such as obtaining an image that optimally permits the diagnosis of an injury or
disease. As a result, these types of images merely contain a de minimis amount of expression, if
any. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884) (“[T]he ordinary produc-
tion of a photograph” with “no place for novelty, invention, or originality” may result in “no
protection” for that image).
The following is a nonexhaustive list of such generally uncopyrightable works:
•
Medical x-rays.
•
Magnetic resonance imaging.
•
Echocardiography.
•
Echo mammography.
•
Varieties of ultrasound.
•
Iodinated ultra venous imaging.
•
Angiography.
•
Electrocardiography.
•
Three-dimensional computed tomography.
•
Positron emission tomography.
•
Electroencephalography imaging.
•
Computed axial tomography.
For the same reasons, the Office will not register surveys of water and land masses that are cap-
tured by the data that echo-sounders and similar equipment produce.
When x-rays or other medical images are used to illustrate a literary work, such as medical
textbooks, excavation training guides, and journal articles, the Office may accept a claim in a
“compilation of images,” “text and illustrations,” “text and illustrative diagrams,” or “text and
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figures.” The registration for such works will cover the text and the copyrightable compilation
authorship, but not the underlying x-rays or medical images.
Similarly, applicants may use terms such as “illustrations,” “figures,” or “illustrative diagrams” to
describe x-rays or medical images that have been modified with words, abbreviations, symbols,
or color indicators, such as arrows, markers, or pointers that illustrate topics discussed in the
accompanying literary work. In such cases, the Office may register the modified image as a tech-
nical drawing if it is sufficiently creative, but the Office will not accept a claim in the underlying
image itself.
These types of technologies were created for diagnostic or other functional purposes, but they
can conceivably be used in an artistic manner. If an x-ray machine or medical imaging device is
used as a tool for an author’s creative expression, that expression may be registered as a pictorial
or graphic work if the resulting image contains a sufficient amount of artistic expression created
by a human author. In such cases, the author’s expression must be recognizable from the deposit
copy(ies), rather than the author’s explanation of his or her creative process.
Examples:
•
Xavier Xander files an application for an x-ray of a broken arm and describes
his authorship as a “photograph.” The registration specialist will refuse to
register the claim.
•
Xenia Xon submits an application for an x-ray of a farm animal that has
been modified with bright red colors and original images of processed food
products. She describes her authorship as “two-dimensional artwork.” The
registration specialist may register the claim, because the creative expression
in the work as a whole is apparent from the deposit copy.
•
Xandra Xee submits an application for an x-ray of a creative collage consist-
ing of flowers and cookies. She describes the authorship as a “photograph.”
Because Xandra used an x-ray machine as a creative tool, rather than a diag-
nostic device, the resulting image would be registrable.
910 Games
This Section discusses certain issues that commonly arise with board games, card games, and
other games with pictorial, graphic, or sculptural authorship. For information concerning vid-
eogames, see Chapter 800, Section 807.7(A).
Games often include both copyrightable and uncopyrightable elements. The copyrightable ele-
ments of a game may include text, artwork, sound recordings, audiovisual material, or other
works of authorship. These types of works may be protectable if they contain a sufficient amount
of original authorship. Uncopyrightable elements include the underlying ideas for a game and
the methods for playing and scoring a game. These elements cannot be registered, regardless of
how unique, clever, or fun they may be.
When completing an application for a game, applicants should describe the specific works(s)
that the applicant intends to register, such as the instructional text, the artwork on a playing
board, and/or the original sculptural elements of game pieces. Applicants should not assert a
claim in “game” or “game design,” because it is generally understood that the game as a whole
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encompasses the ideas underlying the game. For the same reason, applicants should not assert a
claim in the methods for playing the game.
Examples:
•
Gloria Glam files an application to register a new board game. In her applica-
tion she asserts a claim in “text and board artwork.” The game board contains
intricate designs and the instructions consist of two pages of text. The reg-
istration specialist will register the claimclaim with an annotation, such as:
“Basis for registration: Unit of publication.”
•
Garfield Grant files an application for a new type of soccer playing field and
asserts a claim in “technical drawing.” The deposit contains a set of technical
drawings with accompanying text. The registration specialist will register the
claim; the registration will extend only to the actual drawings and descriptive
text but not to the design for the field itself.
•
Glenn Garner files an application to register a “new game of chess, consist-
ing of a new way to play the game, new playing pieces, and a new board with
three levels.” The registration specialist may register any descriptive text and
the design of the playing pieces if they contain a sufficient amount of creative
expression. However, the specialist cannot register the idea for and method of
playing the new game, or the idea of playing the game on a board split into
three levels. Therefore, the specialist may add two annotations, such as: “Basis
for registration: Unit of publication” and “Regarding authorship information:
idea for, and procedure or method of operation used in, game not copyright-
able. 17 U.S.C. § 102(b). Registration extends to artwork deposited.”
Games are often distributed in a physical package that contains separately fixed component
works that have been bundled together and distributed to the public as a single, integrated unit.
In such cases, it may be possible to register the component works with the unit of publication
option, which allows multiple works to be registered together with one application and one
filing fee. See 37 C.F.R. § 202.3(b)(4). For information concerning this option, see Chapter 1100,
Section 1103.
For information on how to register purely literary aspects of a game, see Chapter 700, Section
714. For information concerning the deposit requirements for games, see Chapter 1500, Sections
1509.1(B) and 1509.3(A)(7).
911 Characters
The original, visual aspects of a character may be protected by copyright if they are sufficiently
original. This may include the physical attributes of the character, such as facial features and
specific body shape, as well as images of clothing and any other visual elements.
The U.S. Copyright Office will register visual art works that depict a character, such as drawings,
sculptures, and paintings. A registration for such works extends to the particular authorship de-
picted in the deposit material, but does not extend to unfixed characteristics of the character that
are not depicted in the deposit. Nor does it cover the name or the general idea for the character.
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When completing an application to register such works, the applicant should use an appropri-
ate term to describe the authorship embodied in the deposit material, such as “2-D artwork” or
“photograph.” Applicants should not refer to or assert claims in “character,” “character concept,
idea, or style,” or a character’s generalized personality, conduct, temperament, or costume. If the
applicant uses these terms, the registration specialist may register the claim with an annotation,
such as: “Regarding authorship information: Registration based on deposited [pictorial, graph-
ic, or sculptural] authorship describing, depicting, or embodying character(s). Compendium
313.4(H).” If the deposit material contains a well-known or recognizable character, the specialist
may ask the applicant to exclude that preexisting material from the claim if the applicant fails
to complete the Limitation of Claim portion of the application.
Examples:
•
Charles Crest creates a sketch of a field mouse with a straw hat and a mis-
chievous grin. He intends to use the sketch in an animated film. He files an
application that asserts a claim in “two-dimensional artwork” and “character.”
The registration specialist may register the claim with an annotation, such as:
“Regarding authorship information: Registration based on deposited pictorial
authorship describing, depicting, or embodying character(s). Compendium
313.4(H).” .
•
Chris Crow creates a series of drawings featuring a stylized flamingo in sev-
eral poses and wearing different hats. He files an application to register his
drawings under the title “Concept Drawings for Character Designs” and he
asserts a claim in “two-dimensional artwork.” The registration specialist may
register the claim and may send the applicant a warning letter noting that the
registration covers only the specific sketches included in the deposit.
•
Chloe Crown creates a series of drawings depicting several well-known comic
book characters. She files an application that asserts a claim in “character
redesigns” or “new versions of characters.” The registration specialist may ask
Chloe if she has permission to prepare these derivative works and to clarify
the derivative authorship that she contributed to the preexisting material.
912 Cartoons, Comic Strips, and Comic Books
Cartoons, comic strips, and comic books typically contain pictorial expression or a combination
of pictorial and written expression. These types of works may be registered as visual art works
or literary works, depending on the nature of the expression that the author contributed to
the work. If the work contains pictorial material or a substantial amount of pictorial material
combined with text, the applicant should select Work of the Visual Arts (in the case of an online
application) or Fo r m VA (in the case of a paper application). If the work mostly contains text
with a small amount of pictorial material, the applicant should select Literary Work for an online
application or Form TX for a paper application. If the types of authorship are roughly equal, the
applicant may use any type of application that is appropriate.
A registration for a cartoon, comic strip, or comic book only covers the specific work that is
submitted to the U.S. Copyright Office. The Office does not offer so-called “blanket registra-
tions” that cover prior or subsequent iterations of the same work. For example, a registration for
a comic strip that depicts a particular character covers the expression set forth in that particular
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strip, but it does not cover the character per se or any other strip or other work that features the
same character. (For more information concerning characters, see Section 911.)
In some cases it may be possible to register a number of cartoons, comic strips, or comic books
with one application and one filing fee.
•
If all of the works are unpublished, it may be possible to register up to ten works together as
a group.
•
If all of the works were first published as a contribution to a periodical, such as a newspaper
or magazine, it may be possible to register the contributions as a group.
•
If all the works were physically bundled together by the claimant for distribution to the public
as a single, integrated unit, and if all the works were first published in that integrated unit
it may be possible to register them using the unit of publication option. However, the works
cannot be aggregated simply for the purpose of registration; instead they must have been first
distributed to the public in the packaged unit.
For detailed information concerning the unit of publication option, and the group registration
options for unpublished works and contributions to periodicals, see Chapter 1100, Sections 1103,
1106, and 1110.
Comic books are typically created by multiple authors, and the issues surrounding the author-
ship and ownership of the various contributions can be complex. In some cases, the creators
may prepare their contributions on a work for hire basis as employees or pursuant to a freelancer
work made for hire agreement. In some cases, the comic book may be a joint work. In other
cases, different authors may create different aspects of the comic book, with some aspects origi-
nating from the publisher and other aspects originating from one or more individual, nonem-
ployee authors (i.e., derivative works). For example, the publisher may claim ownership of the
characters and the basic story, and may hire others to create the artwork, text, and/or lettering
for particular issues. Then a freelance or staff contributor may contribute coloring and editing.
If all of the work is done on a work made for hire basis, the authorship is clearly owned by the
publisher, and as such the publisher should be named as the claimant.
If multiple authors contributed to the comic book as individual authors (not as joint authors or
under a work made for hire agreement), and if it is unclear from the face of the deposit copy(ies)
which author created what authorship and on what basis, the applicant should provide that
information in the Author Created field of the online application or the Nature of Authorship
space of the paper application. Such claims may require multiple separate applications to register
the derivative authorship (e.g., an application for the pencil drawings and a separate application
for the coloring of the preexisting drawings).
In some cases, comic book publishers license the use of another party’s characters and stories. In
other cases, the publisher creates the stories, but the characters have been licensed. In such cases,
the applicant should exclude the licensed characters and/or stories from the claim by stating
“licensed character” or “licensed character and storyline” in the Material Excluded / Preexisting
Materials field/space. The claimant should not name the licensor of the preexisting characters
and/or stories as an author of the new text and artwork in the comic book.
The registration specialist will communicate with the applicant if the authorship or ownership
information provided in the application is unclear or inconsistent with other statements in the
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application, the deposit copy(ies), or industry practice. In addition, the specialist may question
whether a given work is a collective work or joint work, rather than a work consisting of sepa-
rately owned contributions or works.
The Office will not register mere reprints, reissues, re-inks/letters/colors, or previously published,
or previously registered comic books, unless the author contributed new copyrightable author-
ship in compiling, adapting, or changing the preexisting content.
913 Prints
Prints include a wide variety of pictorial and graphic works, such as greeting cards, postcards,
posters, decals, stationery, illustrations, and other abstract and representational designs. This
category also includes advertisements, billboards, brochures, and other two-dimensional works
“intended for use in advertising and commerce.” H.R. Rep. No. 94-1476, at 54, reprinted in 1976
U.S.C.C.A.N at 5667.
The U.S. Copyright Office may register a print if it contains at least a minimum amount of origi-
nal pictorial or graphic authorship. In making this determination, the registration specialist will
not consider the artistic merit, aesthetic value, or intrinsic quality of the print. See id. Nor will
the Office consider the commercial purpose or intended use of the work. Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 251 (1903) (“A picture is none the less a picture and none the less
a subject of copyright that it is used for an advertisement.”).
A copyright claim cannot be based solely on mere variations of typographic ornamentation,
lettering, or coloring. 37 C.F.R. § 202.1(a). Likewise, the mere arrangement of type on a page or
website cannot support a copyright claim, unless the overall arrangement produces an original
pictorial or graphic design, such as a visual representation of a person or product.
914 Trademarks, Logos, and Labels
914.1 Copyrightable Authorship in Trademarks, Logos, and Labels
A visual art work that is used as a trademark, logo, or label may be registered if it satisfies “the
requisite qualifications for copyright.” 37 C.F.R. § 202.10(b). The authorship in the work may be
pictorial, graphic, or in rare cases sculptural, or the work may contain a combination of these
elements. When reviewing an application to register a trademark, logo, or label the U.S. Copy-
right Office will examine the work to determine if it embodies “some creative authorship in its
delineation or form.” Id. § 202.10(a). However, the Office will not consider whether the work has
been or can be registered with the U.S. Patent and Trademark Office. Id. § 202.10(b).
The copyright law covers the creative aspects of a pictorial, graphic, or sculptural work, regardless
of whether the work has been used or is capable of being used as an indicator of source. Unlike
trademark law, copyright law is not concerned with consumer confusion and a trademark, logo,
or label may be eligible for copyright protection regardless of whether the work is distinctive
or whether consumers may be confused by the use of that work. In other words, a visual art
work may be distinctive in the trademark sense, even if it does not qualify as a work of original
authorship in the copyright sense.
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The Office typically refuses to register trademarks, logos, or labels that consist of only the fol-
lowing content:
•
Wording.
•
Mere scripting or lettering, either with or without uncopyrightable ornamentation.
•
Handwritten words or signatures, regardless of how fanciful they may be.
•
Mere spatial placement or format of trademark, logo, or label elements.
•
Uncopyrightable use of color, frames, borders, or differently sized font.
•
Mere use of different fonts or colors, frames, or borders, either standing alone or in combina-
tion.
Example:
•
Lori Lewis submits a logo consisting of two letters linked together and facing
each other in a mirror image, and two unlinked letters facing each other and
positioned perpendicular to the linked letters. The registration specialist
will refuse to register this work because letters alone cannot be registered, and
there is insufficient creativity in the combination and arrangement of these
elements. See Coach, Inc. v. Peters, 386 F. Supp.2d 495, 498 (S.D.N.Y. 2005).
914.2 Application Tips for Trademarks, Logos, and Labels
When completing an application for a trademark, logo, or label, applicants should describe the
pictorial, graphic, or sculptural authorship that the author contributed to the work. Applicants
should avoid using vague terms, such as “trademark design,” “trade dress design,” “mark,” “logo,”
“logotype,” or “symbol.” Likewise, applicants should avoid using the following terms which may
be questioned by the registration specialist: “composite work,” “collective work,” “selection
and arrangement,” “look and feel,” “distinctive,” “distinctiveness,” “totality of design,” or “total
concept and feel.”
915 Catalogs
For purposes of copyright registration, catalogs are considered compilations of information or
collective works that contain written descriptions and/or pictorial depictions of two or three-
dimensional products. Catalogs generally contain copyrightable pictorial and/or literary au-
thorship, and they also may contain copyrightable authorship in the selection, coordination,
and/or arrangement of copyrightable or uncopyrightable elements.
The photographs within a catalog may be registered together with the catalog as a whole (i) if the
photographs and the catalog were created by the same author, or (ii) if the copyright claimant
owns all of the rights in the photographs and the compilation authorship involved in creating
the catalog as a whole, and (iii) if the photographs have not been previously published or previ-
ously registered. However, a claim in the photographs does not extend to the actual works or
objects depicted in those images.
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A catalog may be registered as a compilation of photographs or a collective work consisting of
photographs if there is a sufficient amount of creative expression in the author’s selection, coor-
dination, and/or arrangement of the images. However, a catalog is not considered a compilation
of the works or objects depicted in those photographs, nor is it considered a collective work
consisting of the works or objects depicted therein. Accord Registration of Claims to Copyright,
77 Fed. Reg. 37,605, 37,606 (June 22, 2012). As a result, a registration for a catalog generally does
not extend to the works or objects shown in that work, even if they are eligible for copyright
protection and even if the claimant owns all of the rights in those works or objects. Instead, the
registration extends only to the pictorial authorship involved in creating the images, and the
authorship involved in selecting, coordinating, and/or arranging those images within the catalog
as a whole. See 17 U.S.C. § 113(b).
By contrast, if the applicant submits individual photographs or pictorial illustrations of a two- or
three-dimensional work (as opposed to a catalog depicting a two- or three-dimensional work),
the registration may cover the pictorial or sculptural authorship that the author contributed to
that work if it is clear that the individual photographs or illustrations are being used as identify-
ing material for the work depicted therein and that the applicant is not attempting to register
the authorship involved in creating the images themselves. For information concerning the
types of works that may be registered with identifying material, see Chapter 1500, Section 1506.
As a general rule, it is not possible to register a group of pictorial, graphic, or sculptural works
with one application, one filing fee, and a submission of identifying material. Instead, the ap-
plicant generally must submit a separate claim for each work. However, there are two limited
exceptions to this rule.
•
If the works are unpublished it may be possible to register them as a group of unpublished
works. Photographs or illustrations of the two- or three-dimensional works may be used as
identifying material in this situation. In such cases, the applicant should assert a claim in the
works depicted in those images rather than the authorship involved in creating the images
themselves.
•
If the works were physically bundled together for distribution to the public as a single, inte-
grated unit and if all the works were first published in that integrated unit, it may be possible
to register them using the unit of publication option.
When a group of photographs are published in a catalog the works depicted therein are consid-
ered published, regardless of whether they are two- or three-dimensional. However, the fact that
a group of works were published in the same catalog does not mean that the catalog constitutes
a unit of publication or that the works may be registered together with the unit of publication
option.
A unit of publication is a package of separately fixed elements and works that are physically
bundled together by the claimant for distribution to the public as a single, integrated unit. The
unit must contain an actual copy of the works and the works must be distributed to the public
as an integral part of the unit. A unit that merely contains a representation of the works, or
merely offers those works to the public (without actually distributing them) does not satisfy this
requirement. For example, a boxed set of fifty different greeting cards sold as a package to retail
purchasers would qualify as a unit of publication. By contrast, a catalog offering fifty different
greeting cards for individual purchase would not be considered a unit of publication, even if
all of the cards may be ordered from the catalog for a single price. Although a catalog may offer
multiple items for sale to the public, the catalog itself does not qualify as a unit of publication,
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because the items themselves are not packaged together in the catalog for actual distribution to
the public.
For a general discussion of compilations and collective works, see Chapter 500, Sections 508 and
509. For detailed information concerning the unit of publication option and the group registra-
tion option for unpublished works, see Chapter 1100, Sections 1103 and 1106.
916 Retrospective Works and Exhibition Catalogs
Retrospective works are published books, websites, or other works that review or look back
on the career of a visual artist. Exhibition catalogs are catalogs, brochures, or other works that
contain copies of works featured in a particular exhibition or other works by the same visual
artist(s). Both retrospective works and exhibition catalogs typically contain both new and pre-
existing authorship.
The new authorship is usually prepared expressly for the retrospective work or the exhibition
catalog, and may include elements such as an introduction, critical essays, photographs, anno-
tated bibliographies, chronological timelines, and the like.
As for the visual artist’s works, retrospective works and exhibition catalogs usually contain (i) works
that were published before they appeared in the new work, and (ii) other works that have never
been sold or otherwise published or publicly exhibited before they appeared in the new work.
When a previously unpublished work is first published in a retrospective work or exhibition catalog,
the fact that the work has been published will affect the subsequent registration options for that
work. For this reason, artists may want to consider registering their pictorial, graphic, or sculptural
works prior to authorizing their depiction in a retrospective work or exhibition catalog.
To register a retrospective work or exhibition catalog, the applicant should limit the claim to
the new content that was prepared specifically for that work, such as new artwork, essays, pho-
tographs, indexes, chronologies, bibliographies, or the like. Any artwork that was previously
registered, published, or in the public domain should be excluded from the claim using the
procedures described in Chapter 600, Section 621.8.
In all cases, the applicant should anticipate that the registration specialist will raise questions
about the ownership and first publication provenance of artwork depicted in a retrospective
work or exhibition catalog. Therefore, when completing the application, the applicant should
provide as much information about those works as possible.
917 Art Reproductions
917.1 Copyrightable Authorship in Art Reproductions
A reproduction of a work of art or a two-dimensional art reproduction may be protected as a
derivative work, but only if the reproduction contains new authorship that does not appear
in the original source work. This category includes hand painted reproductions (typically on
canvas); plate, screen, and offset lithographic reproductions of paintings; Giclée prints; block
prints; aquaprint; artagraph; among other forms of expression.
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An exact copy of a source work is not eligible for copyright protection, because it is akin to a
purely mechanical copy and includes no new authorship, regardless of the process used to cre-
ate the copy or the skill, craft, or investment needed to render the copies. For the same reason,
a reproduction of a work of art cannot be protected based solely on the complex nature of the
source work, the apparent number of technical decisions needed to produce a near-exact repro-
duction, or the fact that the source work has been rendered in a different medium. For example,
the U.S. Copyright Office will not register the following types of works:
•
Reproductions of purely textual works.
•
Reproductions in which the only changes are to the size or font style of the text in an under-
lying work.
•
Mere scans or digitizations of texts or works of art.
•
Reproductions in which the only change from the original work is a change in the printing
or manufacturing type, paper stock, or other reproduction materials.
•
Preservation and restoration efforts.
•
Any exact duplication, regardless of the medium used to create the duplication (e.g., hand
painting, etching, etc.).
The Office will register any new and creative authorship that is fixed in an art reproduction.
However, the registration specialist will not assume that all such works embody new, registrable
authorship. In addition, the specialist will communicate with the applicant if the application
refers to a new process previously unknown to the Office, or if it appears that the author made
no more than a high quality copy of the source work.
917.2 Application Tips for Art Reproductions
917.2(A) Distinguishing Art Reproductions from the Source Work and Identifying Material
To register a reproduction of a work of art, the applicant should fully describe the new author-
ship that the author contributed to the source work. As a general rule, the terms “2-D artwork”
or “reproduction of work of art” may be used to describe the authorship involved in recasting,
transforming, or adapting the source work. When completing an online application the ap-
plicant should provide this information in the Author Created field. When completing a paper
application, the applicant should provide this information in the Nature of Authorship space. In
addition, applicants are strongly encouraged to provide a clear description of the new authorship
that the author contributed to the reproduction using specific terms that distinguish the new
authorship from the source work. This information may be provided in the Note to Copyright
Office field or in a cover letter. Doing so may avoid the need for correspondence that could delay
the examination of the application.
The applicant should not refer to the authorship in the source work that has been recast, trans-
formed, or adapted by the author of the print or reproduction. Likewise, the applicant should
not refer to the type of identifying material that the applicant intends to submit to the Office.
For example, if the applicant intends to register a lithographic reproduction of a preexisting
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painting, the applicant should clearly describe the new artwork that the author contributed to
that reproduction. The author should not refer to the preexisting painting that is depicted in the
lithograph. If the applicant intends to submit a photograph of the lithograph as the identifying
material for the claim, the applicant should not refer to the reproduction as a “photograph.” If
the applicant states “photograph” the registration specialist may assume that the applicant in-
tends to register the authorship involved in taking the photograph of the lithograph, rather than
the authorship involved in creating the reproduction of the preexisting painting.
917.2(B) Authorship Unclear
Applicants should not use vague terms to describe the new authorship that the author contrib-
uted to an art reproduction. Likewise, applicants should not use terms that merely describe the
tools or methods that the author used to create the work, such as “computer print,” “computer
reproduction,” “block print,” “offset print,” “print,” or “photoengraving,” because this suggests
that the applicant may be asserting a claim in an idea, procedure, process, system, method of
operation, concept, principle, or discovery.
If the author merely painted over areas of the source work, the registration specialist may com-
municate with the applicant if it appears that the applicant is attempting to register the author-
ship (if any) involved in restoring the source work to its original condition.
918 Installation Art
The U.S. Copyright Office generally discourages applicants from using the term “installation
art” in applications to register visual art works. Applicants use this term for a wide variety of
artistic endeavors and it has many broad, ambiguous meanings. Because this term is unclear, the
registration specialist may communicate with applicants if they describe a pictorial, graphic, or
sculptural work as “installation art.”
Instead, applicants should identify any copyrightable content in the work and should describe
that content using terms such as “sculpture,” “painting,” “photographs,” or the like. This is true
even if the overall installation itself is a registrable work of authorship. In such cases, the ap-
plicant should use accepted terms to describe the work, such as “a series of sequentially and
thematically related photographs interspersed with drawn and painted images to create a larger
work of authorship.”
919 Maps
Maps may be protected under the copyright law as pictorial works or sculptural works, depend-
ing on whether the work contains two- or three-dimensional authorship. Indeed, maps were
among the first works that were eligible for copyright protection under the 1790 Act. This Section
discusses certain issues that commonly arise in connection with such works.
919.1 Copyrightable Authorship in Maps
Maps are cartographic or visual representations of an area. Examples include terrestrial maps
and atlases, marine charts, celestial maps, as well as three-dimensional works, such as globes
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and relief models. A map may represent a real or imagined place, such as a map in a book or
videogame that depicts a fictional country.
Maps are not considered useful articles for purposes of registration, because they convey in-
formation. 17 U.S.C. § 101 (definition of “useful article”). As such, they are not subject to the
separability test described in Section 924.3.
The U.S. Copyright Office will register maps, globes, and other cartographic works if they display
a sufficient amount of original pictorial or sculptural authorship.
The Office may register an original selection, coordination, and/or arrangement of cartographic
features, such as roads, lakes, or rivers, cities, or political or geographic boundaries. But to be
copyrightable, the work as a whole must be creative. In making this determination, the Office
will not consider the amount of effort required to create the work, such as surveying or carto-
graphic field work.
919.2 Derivative Maps
Maps are often based on one or more preexisting works. A derivative map may be eligible for
registration if the author added a sufficient amount of new authorship to the preexisting mate-
rial, such as creative depictions of new roads, historical landmarks, or zoning boundaries.
If the map contains an appreciable amount of material that has been previously published, previ-
ously registered, material that is in the public domain, or material that is owned by a third party,
the applicant should exclude that material from the claim and should limit the claim to the new
copyrightable authorship that the author contributed to the derivative map. For guidance in
completing this portion of the application, see Chapter 600, Section 621.8.
The U.S. Copyright Office will refuse to register a derivative map if the work does not contain
a sufficient amount of new authorship. For instance, “[a]dditions to … preexisting maps such
as color, shading, and labels using standard fonts and shapes fall within the narrow category of
works that lack even a minimum level of creativity” required for registration. Darden v. Peters,
488 F.3d 277, 287 (4th Cir. 2007). Reprints of public domain maps or previously published mate-
rials are not registrable. Similarly, maps that consist solely of public domain elements, common
elements, or elements that contain no original compilation authorship are not registrable, such
as an outline map of the United States containing nothing more than the names of the state
capitals.
920 Patterns, Stencils, and How-To Books
Pattern books contain specific instructions on how to make various items, such as knitwear and
toys, while how-to books typically contain instructions on how to perform various techniques.
Stencils provide outlines and shapes that may be used for other purposes, such as a stencil of
leaves that may be used for painting a border on a wall. This Section discusses certain issues that
commonly arise in connection with such works.
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920.1 Patterns for Making Articles
The drawings and text in a pattern book may be copyrightable, if they are sufficiently original.
This may include textual instructions, technical diagrams that demonstrate cutting, stitching,
weaving, or other techniques required by the pattern, as well as illustrations of the completed
items.
Pattern books are not considered useful articles for purposes of registration, because they typi-
cally convey information. 17 U.S.C. § 101 (definition of “useful article”). But as a general rule, a
registration for a pattern book does not extend to individual pattern pieces that may be used to
create a useful article, such as shapes that may be traced and used to make a sleeve for a dress,
because the pieces themselves are also useful articles that rarely contain any separable, copyright-
able authorship. See 17 U.S.C. § 113(b). For similar reasons, the registration does not extend to
any useful article that may be created with the pattern, such as an item of clothing. For a general
discussion of useful articles, see Section 924.
920.2 Stencils and Templates
Stencils and templates are patterns for tracing, trimming, or cutting designs or other items de-
picted by the stencil or template. The U.S. Copyright Office may register stencils or templates that
contain a sufficient amount of original pictorial or graphic artwork or original compilations of
such artwork, such as a stencil book that contains original, artistic images of animals, trees, and
automobiles. However, the Office will refuse to register stencils consisting of common figures,
symbols, or other uncopyrightable material, including any standard arrangements thereof.
920.3 How-To Books, Project Books, and Crafts-Making Books
A how-to book explains how to perform certain skills and techniques. These types of works
generally do not contain pattern pieces or parts, because they are intended to teach a craft or
technique rather than provide instructions on making a specific item.
How-to books typically contain text, photographs, and technical diagrams, which may be pro-
tected by copyright law if they are sufficiently creative. However, the “project” or “craft” as a
whole — even if it is original — is merely an idea that is not copyrightable. 17 U.S.C. § 102(b).
The U.S. Copyright Office will reject nonspecific claims in project ideas or project design.
920.4 Application Tips for Patterns, Stencils, and How-To Books
To register a pattern, stencil, or how-to book, the applicant should describe the copyrightable
content in the deposit using terms such as “text, “2-D artwork,” “photograph,” or “technical
drawing,” as applicable. Applicants should not assert a claim in “pattern,” “project,” “activity,”
or “craft.”
If the deposit copy(ies) identify the author or designer of the projects, crafts, or designs and
if that author is not named in the application, the applicant should explain how the claimant
acquired ownership of the copyright by checking the work made for hire box “yes” (if the work
qualifies as a work made for hire) or by including an appropriate transfer statement. For guid-
ance in completing these portions of the application, see Chapter 600, Sections 614 and 620.
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921 Graphs, Charts, Tables, and Figures
The copyright law does not protect blank graphs, charts, tables, and figures that are designed for
recording information and do not in themselves convey information. These types of works are
not copyrightable, because they rarely contain more than a de minimis amount of authorship
other than that necessary to implement the underlying method, technique, or idea. For the same
reasons, the ideas for graphs, charts, tables, and figures or the overall design of a graphing, chart-
ing, or tabling method or template are not copyrightable. See 37 C.F.R. § 202.1(c).
The U.S. Copyright Office will not register a blank graph, chart, table, or figure if the claim is
based solely on standard color variations, such as the mere addition of only a few standard colors.
See id. § 202.1(a). However, the Office will register any copyrightable expression presented in a
graph, chart, table, or figure, such as a copyrightable compilation of data, facts, or information.
Additionally, the Office will register sufficiently expressive text that describes, explains, and/or
interprets a particular graphing, charting, or tabling method.
Examples:
•
Gary Grant creates a pie chart that presents demographic information on five
generations of a selected family. Gary files an application asserting a claim
in “two-dimensional artwork, text, and chart.” The pie chart, in and of itself,
is not copyrightable and cannot be registered. The registration specialist
will communicate with the applicant and ask him to limit the claim to any
registrable textual or compilation authorship.
•
Gayle Giles creates a columnar table that records information about her son’s
physical and intellectual growth in ten selected categories. Gayle includes text
and photographs throughout the table. Gayle files an application asserting
a claim in “design, text, photographs, and two-dimensional artwork.” The
registration specialist will ask the applicant to limit the claim to the text, pho-
tographs, and the compilation of data to the extent that the selection and
arrangement are original.
See generally Registration of Claims to Copyright: Notice of Termination of Inquiry Regarding
Blank Forms, 45 Fed. Reg. 63,297 (Sept. 24, 1980).
922 Technical and Scientic Drawings
Technical and scientific drawings include mechanical drawings, engineering diagrams, and simi-
lar works. The U.S. Copyright Office will register these types of works if they contain a sufficient
amount of original pictorial or graphic material.
Technical drawings are not considered useful articles for purposes of registration, because they
convey information or merely portray the appearance of the object depicted in the drawing. 17
U.S.C. § 101 (definition of “useful article”). As such, they are not subject to the separability test
described in Section 924.3.
When the Office registers a technical or scientific drawing, the registration covers only the draw-
ing itself and does not “extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is described, explained, il-
lustrated, or embodied in such work.” 17 U.S.C. § 102(b). Likewise, a registration for a technical
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drawing does not provide copyright protection for any useful article depicted in the drawing
See 17 U.S.C. § 113(b).
Examples:
•
Terence Town creates five drawings that show the same screw from different
perspectives (e.g., top-down, bottom-up, left elevation, right elevation, and
a close-up of the screw’s grooves). Terence files an application that asserts a
claim in “technical drawing.” The drawings do not provide information con-
cerning the measurements, specifications, or other information concerning
the size, design, or material composition of the screw depicted therein. The
registration specialist may register the claim. The registration covers the
drawings, but not the screw itself.
•
Teresa Todorov submits several drawings that contain specifications and in-
formation concerning the fastener depicted therein. The applicant asserts
a claim in a “technical drawing and text” as well as “technical drawing and
compilation.” The registration specialist may ask the applicant to limit the
claim to “technical drawing,” because this term adequately describes the au-
thorship in the drawings together with the compilation of information and
data concerning the depicted object. The specialist would accept a claim in
“text” only if the drawing contained adequate descriptive or informational
textual matter other than mere numbers, measurements, descriptive words
and phrases, or the like.
923 Models
For purposes of copyright registration, a model is a three-dimensional replica or depiction of
an object or design, such as a replica of a car or a model of an architectural design. Models are
typically protected under U.S. copyright law as sculptural works, although they also may include
pictorial or graphic elements. This Section discusses certain issues that commonly arise in con-
nection with such works.
923.1 Copyrightable Authorship in Models
Models may be replicas or depictions of either artistic or utilitarian objects. Models themselves,
however, are not considered useful articles for purposes of registration, because they convey
information or merely portray the appearance of the object depicted in the model. 17 U.S.C. §
101 (definition of “useful article”). Similarly, children’s toys – such as model airplanes – are not
themselves typically considered useful articles, because they merely portray the item that the
toy represents. See Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970, 973 (6th Cir. 1983). Because
they are not useful articles, models and toys are not subject to the separability test described in
Section 924.3.
A replica of an existing useful article or a model of an existing architectural work may be protect-
able if it includes a sufficient amount of original authorship and if it contains some original dif-
ferences from the object depicted. Star Athletica, 137 S. Ct. at 1010 (acknowledging that “a replica
[of a useful article] could itself be copyrightable”). Specifically, the copyright law protects models
if there are distinguishable, creative differences in shape, line, perspective, or details between the
model and the depicted object. The amount of effort, time, monetary expense, technical skill, or
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craft that the author contributed to the model is irrelevant to this determination. The complexity
of the depicted object is also irrelevant. A model of a relatively simple object may be copyright-
able if the author exercised sufficient creativity in rendering that object as a model. However, the
Office will not register a model simply because it depicts an object that is extremely complex. See
Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008) (Gorsuch,
J.) (declining to extend copyright protection to digital wire frame models that depicted “nothing
more than unadorned Toyota vehicles – the car as car”).
The copyright law does not protect models that are exact replicas of the source work, regardless
of how much skill or labor was involved in creating the work. Merely reducing or enlarging the
size of the source work or producing the source work in a new medium is not sufficient to war-
rant copyright protection. Likewise, the copyright law does not protect models if the differences
between the model and the source work were dictated by manufacturing or material require-
ments. See id. at 1270 (“If the basic design reflected in a work of art does not owe its origin to
the putative copyright holder, then that person must add something original to that design, and
then only the original addition may be copyrighted.”); see also ATC Distribution Group, Inc. v.
Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005) (finding “hand-
drawn sketches of transmission parts, copied from photographs” not copyrightable because
“the illustrations were intended to be as accurate as possible in reproducing parts shown in the
photographs . . . a form of slavish copying that is the antithesis of originality”).
Although a replica of a useful article “could itself be copyrightable,” the copyright in that model
does not “give rise to any rights in the useful article that inspired it.” Star Athletica, 137 S. Ct.
at 1010. In other words, one cannot “claim a copyright in a useful article merely by creating a
replica of that article in some other medium,” such as “a cardboard model of a car.” Id. And the
copyright in a model that portrays a useful article does not extend to the manufacture, distribu-
tion, or display of the useful article itself. See 17 U.S.C. § 113(b); H.R. Rep. No. 94-1476, at 105,
reprinted in 1976 U.S.C.C.A.N at 5720.
923.2 Application Tips for Models
To register a three-dimensional model or a model containing a combination of two- and three-
dimensional authorship, the applicant should describe the work as a “sculpture” in the Author
Created field (when completing an online application) or in the Nature of Authorship space
(when completing a paper application using Fo r m VA ).
Applicants may use the term “reproduction of work of art” to describe a model that is a three-
dimensional interpretation of a preexisting work of art, such as a three-dimensional model of
the Mona Lisa. If the model is an original, sculptural interpretation of an uncopyrightable object
that is not a work of art, such as a truck, a train, or the letter “G,” applicants should use the term
“sculpture” rather than the term “reproduction of work of art.”
In addition, applicants are strongly encouraged to provide a clear description of the creative
authorship that the author contributed to the model using specific terms that distinguish the
model from the object depicted. This information may be provided in the Note to Copyright
Office field or in a cover letter. Doing so may avoid the need for correspondence that could delay
the examination of the application.
If the work described in the application is a model of a work that is protected by copyright, the
applicant should describe the new material that the author contributed to the model and should
exclude the preexisting material from the claim in the appropriate fields or spaces of the applica-
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tion. For guidance in completing this portion of the application, see Chapter 600, Section 621.8.
Such statements are encouraged, but not required, if the work described in the application is a
replica of a useful article or an uncopyrightable object.
924 Copyright Law Protects the Design Aspects of a Useful Article
“The statute does not protect useful articles as such.” Star Athletica, 137 S. Ct. at 1008. But the
pictorial, graphic, or sculptural features of the design of a useful article may be eligible for copy-
right protection if those features can be identified separately from, and are capable of existing
independently of, the utilitarian aspects of the article. See id. at 1007.
Congress, the Supreme Court, and the U.S. Copyright Office interchangeably refer to “useful
articles” as “useful objects,” “industrial articles,” “industrial products,” or “industrial designs.”
Star Athletica, 137 S. Ct. at 1007; Mazer, 347 U.S. at 218-19; H.R. Rep. No. 94-1476, at 55, reprinted
in 1976 U.S.C.C.A.N. at 5668; RepoRt of tHe RegisteR of CopyRigHts oN tHe geNeRal RevisioN of
tHe U.s. CopyRigHt law at 12 (1961).
“The line between art and industrial design . . . is often difficult to draw.” Star Athletica, 137 S.
Ct. at 1007. The Copyright Act protects “applied art,” which is defined as “art employed in the
decoration, design, or execution of useful objects, or those arts or crafts that have a primarily
utilitarian function, or the designs and decorations used in these arts.” Id. at 1014 (quotations and
citations omitted); H.R. Rep. No. 94-1476, at 54 (noting that “works of ‘applied art’ encompass all
original, pictorial, graphic, and sculptural works that are intended to be or have been embodied
in useful articles”), reprinted in 1976 U.S.C.C.A.N at 5667.
But the statute draws a clear distinction “between copyrightable works of applied art and uncopy-
righted works of industrial design.” H.R. Rep. No. 94-1476, at 55, reprinted in 1976 U.S.C.C.A.N.
at 5668. Specifically, the “design of a useful article shall be considered a pictorial, graphic, or
sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic,
or sculptural features that can be identified separately from, and are capable of existing indepen-
dently of, the utilitarian aspects of the article.” 17 U.S.C. § 101 (definition of “pictorial, graphic,
and sculptural works”).
note:
As mentioned in Section 906.10, the copyright law also limits the scope of protection
for works of artistic craftsmanship. Specifically, the law protects the “form” of a work of artistic
craftsmanship, but it does not protect “the mechanical or utilitarian aspects” of such works. Id.
“Works of artistic craftsmanship” are considered a separate and distinct category of authorship
for purposes of registration. For further discussion of these works, see Section 925.
This Section provides a definition and discussion of the terms “useful article” and the “design
of a useful article.” It describes the “separability test,” which is a “special rule for copyrighting
a pictorial, graphic, or sculptural work [that has been] incorporated into a ‘useful article.’” Star
Athletica, 137 S. Ct. at 1008, 1011. It also discusses issues that commonly arise in connection with
such works.
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924.1 What Is a Useful Article?
The Copyright Act defines a useful article as “an article having an intrinsic utilitarian function
that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. §
101. Common examples of useful articles include:
•
Machinery, such as generators, lathes, and cement mixers.
•
Tools and implements, such as hammers, shovels, and saws.
•
Instruments, such as hypodermic needles, scalpels, calipers, and hair clippers.
•
Measuring and computing devices, such as tape measures and rulers.
•
Vehicles, such as automobiles, airplanes, and boats.
•
Household appliances, such as refrigerators, stoves, toasters, food processors, vacuum cleaners,
washing machines, air conditioners, clocks, and television sets.
•
Household fixtures, such as bathtubs and sinks.
•
Furniture, carpets, and curtains.
•
Lamps and lighting fixtures.
•
Tableware and glassware.
•
Kitchen utensils, such as pots and pans.
•
Bottles and containers.
•
Textile fabrics.
•
Articles of clothing.
The statute also provides that “[a]n article that is normally part of a useful article is considered
a ‘useful article.’” Id. For example, the bezel on a wristwatch or a knob on a stove are useful
articles, because they are inherently useful and they are intended to be used as part of a larger
useful article.
By definition, a useful article must have an “intrinsic utilitarian function.” Id. For instance, lamps
are inherently useful because they provide illumination, and the “shape, cut, and dimensions”
of an article of clothing is inherently useful because it covers the body. Star Athletica, 137 S. Ct.
at 1015-16.
Not all items that may be described as “useful” are “useful articles” under the Copyright Act:
•
An item that merely conveys information is not considered a useful article, even if that infor-
mation is inherently useful. See 17 U.S.C. § 101 (definition of “useful article”). This includes
maps, charts, graphs, x-rays, and works of a similar nature.
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•
An item is not considered a useful article if it merely portrays the appearance of a useful
article. See id. This includes models, technical drawings, and other works that depict a useful
article in two or three dimensions.
•
A pictorial, graphic, or sculptural work that does not have an intrinsic utilitarian purpose is
not considered a useful article, even if it could potentially be used in a functional manner. For
example, a sculpture does not become a useful article simply because it could potentially be
used as a doorstop or a coat rack.
•
Literary works, motion pictures, audiovisual works, architectural works, musical works, dra-
matic works, pantomimes, and choreographic works are not considered useful articles for
purposes of registration, no matter how useful or functional they may be.
In determining whether an article does – or does not – have an intrinsically utilitarian function,
the U.S. Copyright Office focuses solely on the work itself. See Brandir International, Inc. v. Cas-
cade Pacific Lumber Co., 834 F.2d 1142, 1145 (2d Cir. 1987) (“The work itself will continue to give
‘mute testimony’ of its origins.”); Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 414
(2d Cir. 1985) (“[T]he ‘mute testimony’” of a useful article puts a court “in as good a position as
the Copyright Office to decide the issue”).
As with any other pictorial, graphic, or sculptural work, the Office will not consider the process
or materials used to create the work, or the number of copies that have been made. 37 C.F.R. §
202.10(a). The Office will not consider the author’s state of mind concerning the intended use
of the work. Id. Nor will the Office consider the marketability or commercial value of the work.
See H.R. Rep. No. 94-1476, at 54, reprinted in 1976 U.S.C.C.A.N. at 5667.
924.2 What Is the Design of a Useful Article?
The “design” of a useful article refers “to the combination of details or features that . . . make up
the useful article.” Star Athletica, 137 S. Ct. at 1009.
As discussed in Section 924, the design of a useful article may be “considered a pictorial, graphic,
or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic,
or sculptural features that can be identified separately from, and are capable of existing indepen-
dently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.
In making this determination, the U.S. Copyright Office applies the separability test set forth
in Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017), which is described in more
detail in Section 924.3.
Congress and the Supreme Court made clear that the Copyright Act does not provide protection
for useful articles in and of themselves, no matter how aesthetically pleasing they may be. Thus,
if a useful article does not contain any features that can be separated from the utilitarian aspects
of the article, the Office will refuse to register the claim. See id. at 1007; H.R. Rep. No. 94-1476, at
55, reprinted in 1976 U.S.C.C.A.N. at 5668 (“[A]lthough the shape of an industrial product may
be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright
protection under the bill.”).
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924.3 The Separability Test
To determine whether the design of a useful article may be eligible for copyright protection, the
U.S. Copyright Office applies a two-step test.
First, the Office will examine the item for any features that “can be perceived as a two- or three-
dimensional work of art separate from the useful article.” Star Athletica, 137 S. Ct. at 1007. This
is known as the “separate-identification” requirement. Id.
Second, the Office will determine if that feature “would qualify as a protectable pictorial, graphic,
or sculptural work – either on its own or fixed in some other tangible medium of expression –
if it were imagined separately from the useful article into which it is incorporated.” Id. This is
known as the “independent-existence” requirement. Id.
These requirements are discussed in more detail in Sections 924.3(A) and 924.3(B).
924.3(A) The Separate-Identication Requirement
The first part of the separability test “is not onerous.” Star Athletica, 137 S. Ct. at 1010.
As a preliminary matter, the registration specialist will review the item depicted in the identifying
material to determine if it is a useful article. In addition, the specialist will determine if any part
of the article has an intrinsically utilitarian function, and as such, should also be considered a
useful article. See 17 U.S.C. § 101 (definition of “useful article”). The criteria used in making these
determinations are summarized in Section 924.1.
“The statute requires separability analysis for any ‘pictorial, graphic, or sculptural features’ incor-
porated into the ‘design of a useful article.’” Star Athletica, 137 S. Ct. at 1009 (emphasis added).
That necessarily means that the Office must apply the separability test in all cases, even if the
design only appears on part of a useful article.
If the item or part of the item appears to be a useful article, the specialist will look at the article
to determine if he or she can “spot some two- or three-dimensional element that appears to have
pictorial, graphic, or sculptural qualities.” Id. at 1010.
In this context, “pictorial” and “graphic” qualities may include pictures, drawings, illustrations, or
other two-dimensional artwork. Id. at 1009. Sculptural qualities may include carvings, engrav-
ings, moldings, or other three-dimensional artwork.
If the useful article appears to have some pictorial, graphic, or sculptural qualities, the specialist
will proceed to the second part of the separability test, which is described in Section 924.3(B). If
the specialist is unable to identify any features that have a pictorial, graphic, or sculptural quality,
he or she will refuse to register the claim.
The following are representative examples of two- and three-dimensional features that typically
satisfy the separate-identification requirement:
•
A painting on a dinner plate.
•
A portrait painted on a cigar box.
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•
An artistic print on wrapping paper or a paper bag.
•
An artistic pattern woven into a rug.
•
A carving on the back of a chair.
•
A decorative hood ornament on an automobile.
•
Artistic scroll work framed as a fireplace screen.
For additional examples that help illustrate how the Office applies the separate-identification
requirement, see Sections 924.3(C) through 924.3(F).
924.3(B) The Independent-Existence Requirement
The second part of the separability test is “more difficult to satisfy.” Star Athletica, 137 S. Ct. at
1010.
The registration specialist must determine if “the separately identified feature has the capacity
to exist apart from the utilitarian aspects of the article.” Id. “In other words, the feature must
be able to exist” as a pictorial, graphic, or sculptural work – “either on its own or when fixed in
some other tangible medium [of expression]” – once it has been “identified and imagined apart
from the useful article.” Id. at 1010, 1012. “If the feature is not capable of existing as a pictorial,
graphic, or sculptural work once [it has been conceptually] separated from the useful article,”
then it is simply one of the “utilitarian aspects” of the useful article that is not eligible for copy-
right protection. Id. at 1010.
The Supreme Court made it clear that “the separated feature [must] qualify as a nonuseful picto-
rial, graphic, or sculptural work on its own.” Id. at 1013. The feature cannot “be a useful article”
in and of itself. Id. at 1010. Nor can it be “[a]n article that is normally a part of a useful article.”
Id. (quoting 17 U.S.C. § 101, definition of “useful article”). And when the feature is conceptually
removed from the useful article and imagined in another medium, it cannot be a replica of the
article itself. See id. at 1010, 1012.
The following are representative examples of two- and three-dimensional features that typically
satisfy the separate identification requirement:
•
A work of art printed on a t-shirt.
•
An etching on a tray.
•
An artistic pattern printed on drapery.
•
A statuette used as a lamp base.
•
A floral relief design on silver flatware.
•
A sculpted figure used as the handle of a letter opener.
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For additional examples that help illustrate how the Office applies the independent-existence
requirement, see Sections 924.3(C) through 924.3(F).
924.3(C) Separable Features May Enhance the Functionality of the Useful Article
As discussed in Section 924.3(B), an artistic feature cannot be a useful article in and of itself, and
it cannot be “[a]n article that is normally a part of a useful article.” Id. at 1010. But the Supreme
Court made it clear that a separable artistic feature may be copyrightable “even if it makes that
[useful] article more useful.” Star Athletica, 137 S. Ct. at 1014.
To be eligible for copyright protection, an artistic feature must “qualify as a nonuseful pictorial,
graphic, or sculptural work” once that feature “has been imaginatively separated from the article”
and considered entirely “on its own.” Id. at 1013, 1014. If that is the case, the feature will satisfy
the separability test, even if it serves a useful purpose when it is incorporated into a useful article.
For example, in Mazer v. Stein, the respondent registered a pair of statuettes, which were intended
to be used as table lamps “with electric wiring, sockets and lamp shades attached.” 347 U.S. at
202. Pictures of one of these items are shown below.
A lamp is a useful article, because it provides illumination. The lamp base would also be con-
sidered a useful article, because it is normally a part of a lamp, and it has an intrinsically useful
purpose: It supports the bulb, socket, and lamp shade. Applying the separability test to this ele-
ment is straightforward. The base is a statuette, and if it was imagined apart from the lamp it
would be considered a sculptural work. The statuette would not be intrinsically useful if it was
conceptually removed from the lamp and considered on its own. Moreover, this is true even
though the statuette could potentially be used in a functional manner when fitted with a shade,
bulb, and wires.
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924.3(D) Separable Features May Cover the Entire Surface of a Useful Article
An artistic feature may be eligible for copyright protection, even if it covers the entire surface of
a useful article. Likewise, a feature may be protected even if it would retain the overall shape of
a useful article if that feature was imaginatively removed from the surface of that article.
“Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted,
two-dimensional applied art correlates to the contours of the article to which it is applied.” Star
Athletica, 137 S. Ct. at 1012. An artistic feature may be protectable if it can be identified and
imagined apart from a useful article. Once the feature has been conceptually separated from the
article, the key question is whether it qualifies as a nonuseful pictorial, graphic, or sculptural
work, or whether it is merely a replica of the article itself.
As the Supreme Court noted, a design etched or painted onto the surface of a guitar may have
pictorial or graphic qualities. “If that entire design is imaginatively removed from the guitar’s
surface and placed on an album cover, it would still resemble the shape of a guitar. But the image
on the cover does not ‘replicate’ the guitar as a useful article.” Id. Instead, the design could be
considered a two-dimensional work of art that simply “corresponds to the shape of the useful
article to which it was applied.” Id. And if that design is sufficiently creative it could be protected
as applied art.
924.3(E) Separating the Design Feature from the Useful Article
To satisfy the separability test, an artistic feature must “qualify as a nonuseful pictorial, graphic,
or sculptural work on its own
.” Star Athletica, 137 S. Ct. at 1013. “In other words, the feature must
be able to exist as its own pictorial, graphic, or sculptural work . . . once it is imagined apart
from the useful article.” Id. at 1010.
When applying this test, the U.S. Copyright Office focuses “on the extracted feature and not
on any aspects of the useful article that remain after the imaginary extraction.” Id. at 1013. This
means that “some aspects of the useful article” must be “left behind” once the artistic feature
has been “conceptually removed” from that item for copyright protection to apply. Id. at 1014
(internal quotation marks omitted).
To be clear, the “imagined remainder” does not need to “be a fully functioning useful article” or
an “equally useful” article. Id. In other words, the Office does not need to imagine a fully func-
tioning useful article “without the artistic feature.” Id. at 1013. Nor does it need to “imagine a
nonartistic replacement for the removed feature” to determine if that feature is capable of exist-
ing apart from the article. Id. at 1014. But to satisfy the separability test, at least some portion of
the useful article must remain after the feature has been imaginatively removed.
For example, a decorative carving on the back of a chair can be imagined apart from the utili-
tarian aspects of the chair itself, because at least some portion of the useful article would be left
behind, namely, the back, seat, arms, and legs. By contrast, the overall shape of the chair cannot
be imagined apart from the item itself, because it “does not have the capacity to exist apart from
the utilitarian aspects” of that item. Id. Nor does it have the capacity to exist “on its own” as a
sculptural work. Id. at 1013.
See generally H.R. Rep. No. 94-1476, at 55 (citing a carving on the back of a chair as an example
of a separable feature of a useful article), reprinted in 1976 U.S.C.C.A.N. at 5668; Transcript of
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Oral Argument at 72-73, Mazer v. Stein, 347 U.S. 201 (1954) (No. 228) (distinguishing between a
piece of furniture and an ornate carving on furniture).
924.3(F) The Overall Shape of a Useful Article Is Not Protectable
Congress provided “limited copyright protection for certain features of industrial designs.” Star
Athletica, 137 S. Ct. at 1007. Specifically, the copyright law only protects separable “pictorial,
graphic, or sculptural features” that are “incorporate[d]” into the design of a useful article. 17
U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”; emphasis added).
As discussed above, the copyright law may protect the shape of a particular feature that has been
incorporated into the design of a useful article if it is separable – meaning that it can be imagined
apart from the utilitarian aspects of that article. But the copyright law does not protect the over-
all form, shape, or configuration of the useful article itself, no matter how pleasing or attractive
it may be. See Star Athletica, 137 S. Ct. at 1010 (recognizing that a design feature cannot “be a
useful article” in and of itself or “[a]n article that is normally part of a useful article”); H.R. Rep.
No. 94-1476, at 55 (noting that copyright protection does “not cover the over-all configuration
of the utilitarian article as such”), reprinted in 1976 U.S.C.C.A.N. at 5668.
For example, in Esquire, Inc. v. Ringer, the appellant attempted to register “the overall shape of
certain outdoor lighting fixtures.” 591 F.2d 796, 798 (D.C. Cir. 1978). The “[p]hotographs accom-
panying the applications showed stationary outdoor luminaries or floodlights, of contemporary
design, with rounded or elliptically-shaped housings.” Id. These items could not be registered,
because they did not contain any “elements, either alone or in combination, which are capable
of independent existence as a copyrightable pictorial, graphic, or sculptural work.” Id. at 798-99.
The fixtures contained five elements: An elliptical or oblate-shaped housing, a base, an electri-
cal socket, wires, and a light bulb. See id. at 798 n.2, 806. While these elements – particularly
the housing and the base – can each be imagined in isolation, that is not the end of the inquiry.
These elements are still considered useful articles for purposes of registration, because they have
an “intrinsic utilitarian purpose” and each item is “[a]n article that is normally a part of a useful
article.” 17 U.S.C. § 101 (definition of useful article).
There is arguably some – albeit minimal – sculptural quality in the overall shape of the housing
and base. But that shape cannot exist as a standalone sculptural work. If that shape was recast in
another medium, it would merely be an exact replica of a useful article, and unprotectable as a
stand-alone sculptural work. See Chapter 300, Section 313.4(A). Thus for purposes of registra-
tion, the overall shape of the base and housing does not contain any features that can be identi-
fied separately from, or any features that are capable of existing independently of, the utilitarian
aspects of this useful article.
note:
Although the Copyright Office would refuse to register a useful article with no separable
features, it may register the overall shape, form, and configuration of a work of artistic crafts-
manship if that work is sufficiently creative. For a detailed discussion of the differences between
a useful article and a work of artistic craftsmanship, see Section 925.3.
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924.4 The Originality Test
If the separability test has been satisfied, the U.S. Copyright Office still must determine if the
design is sufficiently original to warrant registration. See Star Athletica, 137 S. Ct. at 1012 &
n.1 (concluding that the respondent’s surface decorations were separable, but “express[ing] no
opinion on whether these works are sufficiently original to qualify for copyright protection” or
“whether any other prerequisite of a valid copyright has been satisfied”).
To be registered, the separable features of a useful article must constitute “copyrightable subject
matter.” Id. at 1008. The statute defines “copyrightable subject matter as ‘original works of au-
thorship fixed in any tangible medium of expression.’” Id. at 1008 (quoting 17 U.S.C. § 102(a)). As
discussed in Chapter 300, Section 308, the term “original” means that the design must be “inde-
pendently created by the author” and must possess “at least some minimal degree of creativity.”
Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991).
As discussed in Section 924.3(E), a separable feature must be capable of existing as a pictorial,
graphic, or sculptural work entirely “on its own.” Star Athletica, 137 S. Ct. at 1013. “In other words,
the feature must be able to exist as its own pictorial, graphic, or sculptural work . . . once it is
imagined apart from the useful article.” Id. at 1010 (emphasis added). That is, the Office imagines
how those features would appear if they were conceptually removed from the useful article, and
then determines if that “standalone” design contains a sufficient amount of creative expression
to warrant registration. Id. at 1011.
924.5 Guidelines for Applying the Separability and Originality Tests
When evaluating the design of a useful article, the U.S. Copyright Office focuses solely on the
appearance of the artistic features that have been submitted for registration. In other words, the
Office imagines how those features would appear if they were conceptually separated from the
article, and then determines if that specific design qualifies as an original and nonuseful pictorial,
graphic, or sculptural work.
If the registration specialist determines that the useful article contains a sufficient amount of
separable, copyrightable authorship, he or she will register the claim. In addition, the specialist
will add an annotation to the certificate identifying the separable, copyrightable features of the
design, such as: “Basis for registration: [Pictorial / graphic / sculptural] features identified sepa-
rately from and capable of existing independently of the utilitarian aspects of a useful article.”
As with any other pictorial, graphic, or sculptural work, the Office does not consider the materi-
als used to create the design or the number of copies that have been made. 37 C.F.R. § 202.10(a);
H.R. Rep. No. 94-1476, at 54, reprinted in 1976 U.S.C.C.A.N. at 5667.
The Office does not consider the author’s intention, artistic reputation, skill, experience, or ex-
pertise. 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”).
The Office will not consider any alternative features or designs that the author may have cre-
ated, or any other designs that may have been created by third parties. Nor does it consider “the
intended use” of the article or its actual use “in industry.” Mazer, 347 U.S. at 219.
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Evaluating these factors 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 made it
clear that copyrightability must be based on “how the article and feature are perceived, not how
or why they were designed.” Id. at 1015.
For similar reasons, the Office does not consider the marketability or commercial appeal of the
design. See H.R. Rep. No. 94-1476, at 54, reprinted in 1976 U.S.C.C.A.N. at 5667. “Nothing in the
statute suggests that copyrightability depends on market surveys.” Star Athletica, 137 S. Ct. at 1015.
Evaluating the commercial exploitation of a design would make copyright protection turn upon
the applicant’s subjective intent at the time when the claim was submitted. “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 [or administrative] aesthetic preferences
for the policy choices embodied in the Copyright Act.” Id.
Finally, the fact that an article or design may be eligible for protection by a utility or design pat-
ent is irrelevant to the issue of copyrightability. Id. at 1015; Mazer, 347 U.S. at 217; 37 C.F.R. §
202.10(a); H.R. Rep. No. 94-1476, at 54, reprinted in 1976 U.S.C.C.A.N. at 5667.
924.6 Application Tips for Registering the Design of a Useful Article
924.6(A) One Application Per Article
For purposes of registration, the separable features of a useful article are considered one design,
and the overall design is considered one pictorial, graphic, or sculptural work. 17 U.S.C. § 101
(“the design [singular] of a useful article . . . shall be considered a pictorial, graphic, or sculp-
tural work [singular]”); Star Athletica, 137 S. Ct. at 1009 (explaining that the “design” [singular]
of a useful article refers “to the combination of details or features [plural] that . . . make up the
useful article”).
As a general rule, an applicant may register all of the separable features of a useful article with one
application, deposit, and filing fee. If the exact same features have been incorporated into several
useful articles – such as a bed, an armoire, and a nightstand – the applicant should select one of
those items and submit identifying material showing the features as they appear on that item.
By contrast, when different sets of features have been incorporated into multiple useful articles,
the applicant must submit a separate application, deposit, and filing fee for each article, even if
those items are sold together or as part of the same set.
924.6(B) Completing the Application
When completing the application, applicants are encouraged to identify the specific artistic
features that are being submitted for registration. For example, the U.S. Copyright Office may
accept a claim in “pictorial design applied to surface of silverware” or “sculptural design incor-
porated into the back of a chair.”
If the application merely asserts a claim in the overall “design” of the useful article, the registra-
tion specialist may communicate with the applicant if the scope of the claim is unclear. If the
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applicant appears to be asserting a claim in the overall shape of the useful article, the specialist
may simply refuse registration.
924.6(C) Preparing the Identifying Material
To register a design that has been incorporated into a useful article, the applicant should submit
a drawing, photograph, or other identifying material that depicts the design as it appears on the
useful article. See 37 C.F.R. § 202.20(c)(2)(xi)(A)(2).
Applicants are encouraged – but not required – to mark the deposit to identify the specific
features being submitted for registration. For example, if the applicant intends to register a
floral design that has been incorporated into the handle of a knife, the applicant may submit a
photograph of the knife together with a close-up photo of the design. The applicant may submit
a photo of the knife and circle or highlight the portion of the image where the design appears.
Alternatively, the applicant may submit a drawing of the knife with solid lines showing the design,
and broken lines used to depict all other aspects of the useful article.
925 Works of Artistic Craftsmanship
A “work of artistic craftsmanship” may be protected as a pictorial, graphic, or sculptural work,
depending on whether it contains two- or three-dimensional authorship. This Section provides
a definition of this term, and a discussion of issues that commonly arise in connection with
such works.
As mentioned in Section 906.10, the copyright law limits the scope of protection for both works
of artistic craftsmanship and the design of a useful article. The law protects the “form” of a work
of artistic craftsmanship, but it does not protect “the mechanical or utilitarian aspects” of such
works. 17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”). Likewise, the
law protects “the design of a useful article,” but it does not protect “the utilitarian aspects” of a
useful article. Id.
Works of artistic craftsmanship and the design of a useful article are considered separate and
distinct categories of authorship for purposes of registration. For a detailed discussion of the
differences between these types of works, see Section 925.3.
925.1 What Is a Work of Artistic Craftsmanship?
A work of artistic craftsmanship is a “work of art” that primarily serves a decorative or orna-
mental purpose, but “might also serve a useful purpose.” See Star Athletica, 137 S. Ct. at 1011
(interpreting U.S. Copyright Office regulation 37 C.F.R. § 202.8(a) (1948) governing “works of
artistic craftsmanship”); Mazer, 347 U.S. at 212, 214 (same).
Common examples of works that fit within this category include:
•
Stained glass.
•
Tapestry.
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•
Wallpaper.
•
Decorative bookends.
•
Paperweights.
•
Piggybanks.
These types of works are considered “objects of art,” even though they may have some “inciden-
tally . . . useful purpose.” United States v. Perry, 146 U.S. 71, 75 (1892). In each case, the work is
essentially artistic, and any incidental mechanical or utilitarian features are simply inherent in
the object of the art form.
For instance, stained glass, tapestries, and wallpaper are primarily used to decorate interior spac-
es, but they may also be incidentally useful in filtering sunlight, blocking cold air, or reflecting
ambient light. Sculpted bookends or paperweights are primarily decorative and incidentally
useful in holding books upright or keeping papers in place. And most piggybanks are primarily
ornamental, but also incidentally useful for actually storing coins.
925.2 Copyrightable Authorship in Works of Artistic Craftsmanship
The copyright law protects works of artistic craftsmanship “insofar as their form but not their
mechanical or utilitarian aspects are concerned.” 17 U.S.C. § 101 (definition of “pictorial, graphic,
and sculptural works”).
As with any other pictorial, graphic, or sculptural work, a work of artistic craftsmanship may
be registered if the “delineation and form” of the work is sufficiently creative. See 37 C.F.R. §
202.10(a). In making this determination, the U.S. Copyright Office will consider the overall shape
and configuration of the work. 37 C.F.R. § 202.10(a). But the Office will not consider any of the
mechanical or utilitarian aspects of the work, such as the dowel hanger at the top of a tapestry
or the plug in the belly of a piggybank.
In this respect, the test for evaluating a work of artistic craftsmanship is the mirror image of the
test for evaluating the design of a useful article. Instead of separating an artistic feature from
the utilitarian aspects of a useful article, the Office must segregate the mechanical or utilitarian
aspects of a work of art. Like the separability test described in Section 924.3, this is a “conceptual
undertaking.” Star Athletica, 137 S. Ct. at 1014.
If the work satisfies this test, the registration specialist may register the claim with an annotation,
such as: “Basis for registration: work of artistic craftsmanship.”
925.3 Works of Artistic Craftsmanship Distinguished from a Useful Article
Differences between a work of artistic craftsmanship and the design of a useful article affect
the test used to determine if the work is eligible for copyright protection, as well as the scope of
protection for the work.
By its express terms, the statutory definition for “[p]ictorial, graphic, and sculptural works” dis-
tinguishes between “works of artistic craftsmanship” on the one hand, and “the design of a useful
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article” on the other. 17 U.S.C. § 101. The first part of the definition “is classic language . . . drawn
from Copyright Office regulations promulgated in the 1940’s and expressly endorsed by the Su-
preme Court in the Mazer case.” H.R. Rep. No. 94-1476, at 54-55, reprinted in 1976 U.S.C.C.A.N
at 5667-68 (referencing 37 C.F.R. § 202.8(a) (1948)). “The second part” of the definition “is an
adaptation of language added to the Copyright Office regulations in the mid-1950’s in an ef-
fort to implement the Supreme Court’s decision in the Mazer case.” Id. (referencing 37 C.F.R. §
202.10(c) (1960)); Star Athletica, 137 S. Ct. at 1011-12 (noting that “Congress essentially lifted the
language governing protection for the design of a useful article directly from the post-Mazer
regulations and placed it into § 101 of the 1976 Act”).
Works of artistic craftsmanship are protectable “insofar as their form but not their mechanical
or utilitarian aspects are concerned,” and they are considered works of original authorship under
Section 102(a)(5) of the copyright law. 17 U.S.C. §§ 101, 102(a)(5).
When examining a work of artistic craftsmanship, the Office applies the test set forth in Section
925.2 to determine if the “delineation and form” of the work is sufficiently creative, including the
overall shape and configuration of the work as a whole. See 37 C.F.R. § 202.10(a). If the work is
registered, the registration covers the work as a whole, but it does not cover any of the mechanical
or utilitarian aspects, elements, or features of that work.
By contrast, useful articles are not copyrightable as such, although “the design of a useful article”
may be considered a pictorial, graphic, or sculptural work under Section 102(a)(5) of the copy-
right law. 17 U.S.C. §§ 101, 102(a)(5). Specifically, the design of a useful article may be protected
“only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural
features that can be identified separately from, and are capable of existing independently of, the
utilitarian aspects of the article.” 17 U.S.C. § 101.
To determine if a particular feature satisfies this requirement, the Office applies the separability
test set forth in Section 924.3, and then determines if that feature contains a sufficient amount of
creative expression. Unlike a work of artistic craftsmanship, the copyright law does not protect
the overall form, shape, or configuration of the useful article itself, no matter how pleasing or
attractive it may be.
A useful article must have “an intrinsic utilitarian function.” 17 U.S.C. § 101 (definition of “use-
ful article”). Works of artistic craftsmanship, by contrast, serve “primarily an ornamental, and
incidentally a useful, purpose.” Perry, 146 U.S. at 75; Star Athletica, 137 S. Ct. at 1011 (noting that
the Mazer Court approved the Copyright Office’s regulations extending copyright protection to
works of art that might also serve a useful purpose); Mazer, 347 U.S. at 212, 214.
In determining whether a work does – or does not – have an intrinsically utilitarian function,
the Office focuses solely on the work itself. As with any other pictorial, graphic, or sculptural
work, the Office will not consider the process or materials used to create the work, or the number
of copies that have been made. 37 C.F.R. § 202.10(a). The Office will not consider the author’s
state of mind concerning the intended use of the work. Id. Nor will the Office consider the
marketability or commercial value of the work. See H.R. Rep. No. 94-1476, at 54, reprinted in
1976 U.S.C.C.A.N. at 5667.
If there is any doubt as to whether an item is intrinsically or merely incidentally useful, the Of-
fice will treat that item as a useful article and apply the separability test set forth in Section 924.3.
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926 Architectural Works
The Copyright Act protects “architectural works.” 17 U.S.C. § 102(a)(8). As discussed in Section
903.2, the statute defines an architectural work as “the design of a building as embodied in any
tangible medium of expression, including a building, architectural plans, or drawings.” 17 U.S.C.
§ 101. An architectural work “includes the overall form as well as the arrangement and composi-
tion of spaces and elements in the design, but does not include individual standard features.” Id.
The U.S. Copyright Office will register an architectural work if it is sufficiently original and if
it has been embodied in a tangible medium of expression, such as a constructed building or
architectural plans or drawings. 37 C.F.R. § 202.11(c).
926.1 Architectural Works Distinguished from Technical Drawings
An architectural work and a technical drawing of an architectural work are separate works. H.R.
Rep. No. 101-735, at 19 (1990) (“An individual creating an architectural work by depicting that
work in plans or drawing[s] will have two separate copyrights, one in the architectural work . . .
the other in the plans or drawings.”).
If the applicant intends to assert a claim in a technical drawing and the architectural work
depicted therein, the applicant should file an application to register the architectural work and
a separate application to register the technical drawing as a pictorial work, even though the
deposit copy(ies) for both applications may be the same. 37 C.F.R. § 202.11(c)(4). (“Where dual
copyright claims exist in technical drawings and the architectural work depicted in the drawings,
any claims with respect to the technical drawings and the architectural work must be registered
separately.”).
A registration for a technical drawing covers the drawing itself, but it does not cover the archi-
tectural work depicted therein. Although a technical drawing may be protected by copyright, the
copyright owner cannot prevent a third party from using that drawing to construct an actual
building. This is due to the fact that the copyright in a pictorial, graphic, or sculptural work that
portrays a useful article – such as a building – does not give the owner of that work the right to
control “the making, distribution, or display of the useful article.” 17 U.S.C. § 113(b). By contrast,
when an architectural drawing or blueprint is registered as an architectural work, the registration
covers the architectural work depicted in those drawings, and the registration may be used in
an infringement action involving the unauthorized reproduction of that work in any material
object (including the construction of an actual building).
Example:
•
Tina Thorn submits a set of drawings and asserts a claim in “drawings for a
building.” The registration specialist will communicate with the applicant,
because it is unclear whether Tina intends to register the drawings or the
architectural work depicted therein.
For guidance in completing an application to register an architectural work or an architectural
drawing, see Section 926.3.
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926.2 Copyrightable Authorship in Architectural Works
The U.S. Copyright Office may register an architectural work if it is a habitable structure that
is stationary, intended to have permanence, and intended for human occupancy. 37 C.F.R. §
202.11(b)(2). Examples of works that satisfy this requirement include houses, office buildings,
churches, museums, gazebos, and pavilions. By contrast, the Office will refuse to register bridges,
cloverleaves, dams, walkways, tents, recreational vehicles, or boats (although a house boat that
is permanently affixed to a dock may be registrable as an architectural work). Id. § 202.11(d)(1).
The Copyright Act protects “the overall form [of an architectural work] as well as the arrange-
ment and composition of spaces and elements in the design.” 17 U.S.C. § 101 (definition of “ar-
chitectural work”). This may include “the overall shape of an architectural work.” H.R. Rep. No.
101-735, at 21. It may include interior architecture. Id. at 18. It also may include the “selection,
coordination, or arrangement of unprotectible elements into an original, protectible whole,” as
well as “new, protectible design elements [incorporated] into otherwise standard, unprotectible
building features.” Id.
Copyright does not protect individual standard features, “such as common windows, doors, and
other staple building components.” Id. Nor does it protect interior design, such as the selection
and placement of furniture, lighting, paint, or similar items, although a pictorial, graphic, or
sculptural representation of an interior design may be registered if it is sufficiently original.
Finally, functional elements whose design or placement is dictated by utilitarian concerns are
not copyrightable.
Examples:
•
Archer Anthony attempts to register a unique birdhouse. The registration
specialist will refuse to register this item as an architectural work, because a
birdhouse is not designed for human occupancy.
•
Archibald Arnold attempts to register a moveable, fast-food kiosk for use in
shopping malls. The registration specialist will refuse to register this item as
an architectural work, because the kiosk is not permanent and stationary.
•
Arlinda Atkins designs a condominium complex with a large, complex parking
structure and intricate landscape design. She attempts to register each aspect of
this design as an architectural work. The registration specialist will register the
condominium design if it is sufficiently original, but will ask the applicant to
remove the reference to the parking structure and landscape design.
While buildings are intrinsically useful, the statutory limitations and restrictions on useful ar-
ticles only apply to pictorial, graphic, and sculptural works. The design of a building may be
considered an “architectural work” under § 102(a)(8) of the Copyright Act if it is sufficiently
creative, but that design would not be considered a pictorial, graphic, or sculptural work. Con-
sequently, architectural works are not subject to the separability test described in Section 924.3.
See H.R. Rep. No. 101-735, at 20.
When examining an architectural work for copyrightable authorship the Office applies a two-
step test. The registration specialist will examine the work to determine “whether there are
original design elements present, including [the] overall shape and interior architecture.” Id. If
so, the specialist will “examine whether the design elements are functionally required.” Id. at 20-
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21. “If the design elements are not functionally required, the work is protectable” and may be
registered as an architectural work. Id. at 21.
As with any other work of the visual arts, the specialist will not consider the novelty, ingenuity,
or aesthetic merit of the work. Id.
926.2(A) Standard Congurations
The U.S. Copyright Office will not register standard configurations of spaces, such as a square
bathroom or one-room cabin. Likewise, the Office will not register claims in the individual
standard features of an architectural work, such as windows, doors, and other staple building
components. 37 C.F.R. § 202.11(d).
Example:
•
Stacey Stone designs a motel comprised of a central hall with uniformly
shaped rectangular rooms. The registration specialist will refuse to register
this claim because it is a standard configuration of space.
926.2(B) Functional Features
The U.S. Copyright Office will not register purely functional elements of an architectural work,
such as innovations in architectural engineering or construction techniques.
Example:
•
Fulton Fowler designed a house with a solar-powered hot water heater and an
earthquake-resistant bracing system. He filed an application to register each
element of his design. The registration specialist may register the overall de-
sign as an architectural work if it is sufficiently original, but the specialist will
ask the applicant to remove the references to the heater and bracing system.
926.2(C) Building Designs Created Before December 1, 1990
The Copyright Act does not protect building designs published or constructed before Decem-
ber 1, 1990. 37 C.F.R. § 202.11(d)(3)(i). Likewise, the statute does not protect designs for uncon-
structed buildings that were embodied in unpublished plans or drawings on December 1, 1990
if the design remained unconstructed as of December 31, 2002. 37 C.F.R. § 202.11(d)(3)(ii).
The Office will refuse to register these types of designs as an architectural work. The plans, draw-
ings, or models for such works may be registered as a pictorial, graphic, or sculptural work, but
the registration for such works does not extend to a building constructed from the plan, drawing,
or model.
926.3 Application Tips for Architectural Works
To register an architectural work using the online application, the applicant should select “Work
of the Visual Arts” in the field marked “Type of Work.” To register an architectural work with a
paper application, the applicant should use F o r m VA .
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If the architectural work has been published, the applicant should provide the date and nation
of first publication in the Publication field/space. An architectural work is deemed published
“when underlying plans or drawings of the building or other copies of the building design are
distributed or made available to the general public by sale or other transfer of ownership, or
by rental, lease, or lending. Construction of a building does not itself constitute publication for
purposes of registration, unless multiple copies are constructed.” 37 C.F.R. § 202.11(c)(5).
If the work was embodied in unpublished plans or drawings on December 1, 1990, and if the
architectural work was constructed before January 1, 2003, the applicant should provide the date
that construction was completed. This information may be provided in the Note to Copyright
Office field when completing an online application, or in a cover letter when submitting Fo r m VA .
To register an architectural work, applicants should check the box marked “architectural work” in
the Author Created field when completing an online application or in the Nature of Authorship
space when completing a paper application. If an applicant submits an architectural drawing or
blueprint and checks the box for “technical drawing,” the registration will cover the diagrams,
illustrations, and accompanying text contained within that drawing, but it will not cover the
building or other structure depicted in that drawing. For additional information concerning
this issue, see Section 923.1.
An application may cover only one architectural work, regardless of whether the work is pub-
lished or unpublished. The U.S. Copyright Office will not register multiple architectural works
as a group of related works. If the applicant intends to register variations on a single plan, such
as a plan for tract housing, the applicant must submit a separate application for each house
model with all accompanying floor plan options, elevations, and styles that are applicable to that
particular model. 37 C.F.R. § 202.11(c)(2).
For information concerning the deposit requirements for architectural works, see Chapter 1500,
Section 1509.3(D).
