302 The Legal Framework
The Copyright Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102 (A).
“A valid copyright extends only to copyrightable subject matter.” Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1005 (2017). Section 410 (A) of the statute states that the Register of Copyrights shall register a claim to copyright and issue a certificate of registration if the U.S. Copyright Office determines that “the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements have been met.” If the Office determines that “the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal.” 17 U.S.C. § 410 (B).
In determining whether a work is copyrightable, the Office analyzes questions such as:
• Is the work eligible for copyright protection in the United States?
• Has the work been fixed in a tangible medium of expression?
• Was the work created by a human author?
• Does the work constitute copyrightable subject matter?
• Is the work sufficiently original?
• Was the work independently created?
• Does the work possess at least some minimal degree of creativity?
If the answer to all of these questions is “yes,” the work is copyrightable and the claim may be registered, as long as there are no other issues in the registration materials that raise questions concerning the claim and as long as the other legal and formal requirements have been met.
These questions are discussed in Sections 304 through 308 below. For information on how the Office interprets these questions when examining derivative works, compilations, and collective works, see Sections 311 and 312.
For information on how the Office interprets these questions when examining specific types of literary works, works of the performing arts, and visual art works, see Chapters 700, 800, and 900.