311.1 Copyrightable Subject Matter
A derivative work may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter.
As discussed in Section 307 above, derivative works are a subset of the subject matter categories, rather than a separate and distinct category of work. In other words, the new material that the author contributed to the derivative work must fall “within one or more of the categories listed in section 102 [of the Copyright Act].” H.R. REP. NO. 94- 1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. If the new material does not fall within one or more of the congressionally established categories of authorship, the registration specialist may communicate with the applicant if the authorship is questionable or may refuse registration. For example, the Office may register a drawing of a dress or a photograph of a garden, but it cannot register a “revised dress design” or a “genetically modified plant,” because clothing and plants do not constitute copyrightable subject matter under Section 102 (A) of the Copyright Act. Cf. Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012).
In addition, the preexisting work that has been recast, transformed, or adapted, “must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.” H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. In other words, the preexisting work must qualify as a literary work; a musical work; a dramatic work; a pantomime or choreographic work; a pictorial, graphic or sculptural work; a motion picture or audiovisual work; a sound recording; and/or an architectural work. For example, a ballet based on an epic poem would be considered a derivative work, because a poem is a type of literary work. By contrast, a photograph of a lake or a sculpture of a mountain would not be considered a derivative work, because lakes and mountains do not constitute copyrightable subject matter.
The fact that the author incorporated uncopyrightable elements of a preexisting work into his or her work does not necessarily mean that the author’s expression qualifies as a derivative work. For example, merely incorporating a word, letter, number, or common geometric shape from one or more preexisting works does not constitute derivative authorship. Instead, the author of the derivative work must recast, transform, or adapt some of the copyrightable portions of a preexisting work. See H.R. REP. NO. 94- 1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670 (explaining that a derivative work “requires a process of recasting, transforming, or adapting ‘one or more preexisting works'” and that “the ‘preexisting work’ must come within the general subject matter of copyright” whereas “[a] ‘compilation’ results from a process of selecting, bringing together, organizing and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright.”).