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September 4th, 2014
To Copyright or Not to Copyright: New Federal Manual Provides Guidance on Registrability
The U.S. Copyright Office (the "Copyright Office") has released a public draft of its administrative manual, the Compendium of U.S. Copyright Office Practices, Third Edition (the "Third Edition"). The Third Edition, comprising over 1,200 pages of administrative practices, is the Copyright Office's first revision of this manual in over two decades. While prior versions of the Compendium were written solely for internal use by Copyright Office examiners, the Third Edition (three times longer than the prior edition) is also intended to be useful to authors, artists, licensees and practitioners as it provides transparency concerning Copyright Office practices and procedures. The Third Edition is an important tool designed to answer complicated intellectual property questions, and mitigate the risk of improper copyright applications.
The Third Edition has received significant press coverage for confirming that the Copyright Office will not register works created by non-humans, such as the now famous selfie taken by a macaque monkey with a camera left unattended in a national park in Indonesia. But the Third Edition should also have long-lasting significance as a plain English reference guide as to what types of artworks may be accepted for copyright. For example, the Third Edition lists several categories of material that are generally uncopyrightable (unless the artwork which includes it is sufficiently original and creative) such as:
- Common geometric shapes, either in two-dimensional or three-dimensional form
- Familiar symbols and designs
- Colors, coloring and coloration
- Typeface, typefont, lettering, calligraphy and typographic ornamentation
- Special format and layout design
- Mechanical processes and random selection
- Naturally occurring and discovered material
- Functional and useful objects
For each of these categories of uncopyrightable material, the Third Edition provides examples that illustrate how the Copyright Office applies these concepts when considering copyright applications. As to the limitation on common geographic shapes, the Third Edition provides the following examples:
- 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 combination 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.
- 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 registration specialist will register the claim despite the presence of the common geometric shapes.
Third Edition at Ch. 900:10. The Third Edition, the first revision of the manual since the infancy of the personal computer and the internet, contains new content regarding websites, online content and digitally altered works, as illustrated by the following example:
- 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.
Id. at Ch. 900:12. The Third Edition will also inform future registration of retrospective books and exhibition catalogs of a visual artist's works, which usually contain works that either were never published or never publicly displayed prior to the publication of the new book. According to the Third Edition, "[w]hen a previously unpublished work is first published in a retrospective book 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 book or exhibition catalog." Id. at Ch. 900:27. The Third Edition also directs applicants seeking to register a retrospective book to limit the claim (i.e. the request to register a work of authorship) to new content that was prepared specifically for the book, such as new artwork, essays, photographs, chronologies, bibliographies, etc., and exclude from the claim any artwork that was previously registered, published or in the public domain.
Given all of the insight provided by the Third Edition, anyone seeking to register an artwork or art-related catalog would be well served by reviewing the Third Edition, which is indexed and text searchable. Those who have more nuanced copyright registration questions should also consult with counsel prior to registering their works.
The Third Edition will remain in draft form for 120 days pending final review and implementation. It is expected to take effect on or about December 15, 2014.
If you have any questions about the Third Edition or any other art or copyright-related legal issues, please contact Amelia Brankov at (212) 826-5574 or email@example.com or any other member of the Frankfurt Kurnit Art Law Group.
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