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

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307 Copyrightable Subject Matter


307 Copyrightable Subject Matter

A work of authorship may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter.


Section 102 (A) of the Copyright Act states that the subject matter of copyright includes the following categories of works:


• Literary works.


• Musical works, including any accompanying words.


• Dramatic works, including any accompanying music.


• Pantomimes and choreographic works.


• Pictorial, graphic, and sculptural works.


• Motion pictures and other audiovisual works.


• Sound recordings.


• Architectural works.


Section 103 (A) states that the subject matter of copyright includes compilations (which cover collective works) and derivative works. See 17 U.S.C. § 103 (A); see also 17 U.S.C. § 101 (explaining that “[t]he term ‘compilation’ includes collective works”). These types of


works are a subset of the categories set forth in Section 102 (A), rather than separate and distinct categories of works. In other words, derivative works, compilations, and collective works may be registered, provided that the work falls within one or more of the congressionally established categories of authorship under Section 102 (A). See Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012).


The categories of works set forth in Section 102 (A) “do not necessarily exhaust the scope of ‘original works of authorship’ that the [Copyright Act] is intended to protect.” H.R. REP. NO. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666. The statute “sets out the general area of copyrightable subject matter” with “sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories.” Id. The categories are also “overlapping in the sense that a work falling within one class may encompass works coming within some or all of the other categories.” Id.


Congress gave federal courts the flexibility to interpret the scope of the existing subject matter categories, but only Congress has the authority to create entirely new categories of authorship. “If the federal courts do not have the authority to establish new categories of subject matter, it necessarily follows that the Copyright Office also has no such authority in the absence of any clear delegation of authority to the Register of Copyrights.” 77 Fed. Reg. at 37,607.


While the categories listed in Section 102 (A) are “very broad . . . there are unquestionably other areas of existing subject matter that [the Copyright Act] does not propose to protect ” H.R. REP. NO. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. at 5665. If the Office determines that a work does not fall within the categories of copyrightable subject matter, the Office will refuse to register the claim. For representative examples of works that do not satisfy this requirement, see Sections 313.3 and 313.6 (C) below.


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