310.10 Commercial Appeal or Success
When examining a work for copyrightable authorship, the U.S. Copyright Office will not consider the marketability or commercial success of the work. Likewise, the Office will not consider “factors such as mass production” or the number of copies or phonorecords that have been made. H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667.
“Nothing in the statute suggests that copyrightability depends on market surveys.” Star Athletica, 137 S. Ct. at 1015. “Works may experience commercial success even without originality and works with originality may enjoy none whatsoever.” Paul Morelli Design, Inc. v. Tiffany & Co., 200 F. Supp. 2d 482, 488 (E.D. Pa. 2002).
“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 aesthetic preferences for the policy choices embodied in the Copyright Act.” Star Athletica, 137 S. Ct. at 1015.