313.6 (B) Unlawful Use of Preexisting Material in a Derivative Work, a Compilation, or a Collective Work
Some derivative works, compilations, and collective works cannot be registered with the U.S. Copyright Office. Section 103 (A) of the statute states that copyright protection for a compilation or derivative work “employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” 17 U.S.C. § 103 (A). This provision also applies to collective works because “the term ‘compilation’ includes collective works.” 17 U.S.C. § 101 (definition of compilation).
Section 103 (A) is intended to prevent “an infringer from benefiting, through copyright protection, from committing an unlawful act.” H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5671. At the same time, it allows the author of a derivative work, a compilation, or a collective work to claim copyright in “those parts of the work that do not [unlawfully] employ the preexisting work.” Id.
Ordinarily, the Office will not examine the preexisting material that appears in a derivative work, a compilation, or a collective work to determine whether that material is protected by copyright or whether it has been used in a lawful manner. However, the registration specialist may communicate with the applicant if the preexisting material has not been excluded from the claim and it is reasonably clear that the claimant may not own the copyright in that material, such as a mix tape containing a compilation of well-known sound recordings. The Office also may question derivative claims that appear to be unlawful and that are inseparable or intertwined with an underlying work, such as stage directions for a dramatic work.
The Office may register a derivative work, a compilation, or a collective work that contains preexisting copyrightable material, provided that the author’s contribution to that work can be separated from the preexisting material. For example, an anthology of poetry may be registered as a collective work, even if the author accidentally included one poem that was unauthorized, because that poem could be severed from the anthology without affecting the lawful aspects of the collective work as a whole. By contrast, the Office may refuse registration if the preexisting material is inseparably intertwined with the compilation or the derivative work, such as an unauthorized translation of a novel or an unauthorized arrangement of a song. See H.R. REP. NO. 94-1476, at 57-58 (1976), reprinted in 1976 U.S.C.C.A.N. at 5671.