Copyright Compendium

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313.2 Works That Lack Human Authorship

 

313.2 Works That Lack Human Authorship

 

As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102 (A) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

 

The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

 

Examples:

 

• A photograph taken by a monkey.

 

• A mural painted by an elephant.

 

• A claim based on the appearance of actual animal skin.

 

• A claim based on driftwood that has been shaped and smoothed by the ocean.

 

• A claim based on cut marks, defects, and other qualities found in natural stone.

 

• An application for a song naming the Holy Spirit as the author of the work.

 

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” U.S. COPYRIGHT OFFICE, REPORT TO THE LIBRARIAN OF CONGRESS BY THE REGISTER OF COPYRIGHTS 5 (1966).

 

Examples:

 

• Reducing or enlarging the size of a preexisting work of authorship.

 

• Making changes to a preexisting work of authorship that are dictated by manufacturing or materials requirements.

 

• Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD.

 

• Declicking or reducing the noise in a preexisting sound recording or converting a sound recording from monaural to stereo sound.

 

• Transposing a song from B major to C major.

 

• Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment.

 

• A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern.