Compendium of U.S. Copyright Practices, 3rd Edition

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1006 Copyrightable Subject Matter

1006 Copyrightable Subject Matter

Section 102 (A) of the Copyright Act states that copyright protection only extends to “original works of authorship.” 17 U.S.C. § 102 (A). To satisfy this requirement, a work must be fixed in a tangible medium of expression, it must be created by a human being, it must constitute copyrightable subject matter, and it must contain a sufficient amount of creative expression.

A website in and of itself is not explicitly recognized as copyrightable subject matter, although it may contain copyrightable subject matter that falls within one or more of the categories of authorship set forth in Section 102 (A), and/or it may qualify as a compilation, a collective work, or a derivative work. A website is merely a medium of fixation for works of original authorship, but it is not a work of authorship in and of itself. In other words, it is a vehicle for the dissemination of content, which may or may not be copyrightable. Like any medium for copyrightable expression, such as a book, DVD, or CD-ROM, it is the content of the website–not the medium of expression–that comprises the copyrightable authorship that may be registered with the U.S. Copyright Office.

Websites may contain three layers of potentially copyrightable authorship:

• Websites contain content that is made perceptible on the website’s pages in the form of text or digital files. Websites usually contain multiple forms of content, such as text, computer programs, photographs and other two-dimensional artwork,

musical works, sound recordings, dramatic works, and motion pictures or other audiovisual works. Website content may be registered if it constitutes copyrightable subject matter and if it contains a sufficient amount of original authorship. The Office applies the same rules when examining these types of works, regardless of whether they are made available on a website or other online medium or whether they are made available in a hard copy format.

• Websites may contain compilation authorship. Specifically, there may be authorship in the way in which the copyrightable text and/or digital files are selected, coordinated, and/or arranged on a particular webpage, or the way in which the pages of the overall website are selected, coordinated, and/or arranged, such as the manner or hierarchy in which the pages are connected or linked to each other. In many cases, the author or claimant of the selection, coordination, and/or arrangement may not be the same as the author of the individual elements within the website. If the selection, coordination, and/or arrangement is sufficiently creative, the website may be registered as a compilation, collective work, or derivative work.

• Websites contain underlying markup language or style sheets that structure, arrange, and coordinate the manner in which the user views or otherwise perceives the content on the site through the his or her browser. The underlying markup language for a website may or may not contain copyrightable authorship. Moreover, markup language may or may not be authored by the creator of the website, but instead may be generated by the website design software that the creator used to create the website.

Websites are somewhat unique as vehicles for the dissemination of content. Unlike a tangible object, such as a printed magazine or a roll of film, websites are not static containers for content. They are dynamic containers that may change over time as often and to the extent that the website owner wishes. In addition, websites are not linear from beginning to end, but rather may be browsed in many varied ways.

Although websites are dynamic, copyright protection in the United States extends only to fixed works of authorship that fall under the categories provided in Section 102 (A) of the Copyright Act. The Office will register a claim in website content only as it exists at the time that the application is received. The Office will not register a claim in website content as it may exist in the future if that content has not been fixed yet.

For information concerning specific types of website content, see Sections 1006.1 through 1006.4. For general information on what constitutes copyrightable subject matter and copyrightable authorship, see Chapter 300, Sections 307 and 308. For general information concerning compilations, collective works, and derivative works, see Chapter 300, Sections 311 and 312, and Chapter 500, Sections 507, 508, and 509.

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