621.1 What Is Unclaimable Material?
A registration for a work of authorship extends only to the new material that the author contributed to that work. It does not extend to any unclaimable material that may appear in that work. For purposes of registration, unclaimable material includes the following types of material:
• Previously published material.
• Previously registered material (including material that has been submitted for registration but has not been registered yet).
• Material that is in the public domain.
• Copyrightable material that is owned by a third party (i.e., an individual or legal entity other than the claimant who is named in the application).
These categories are described and discussed below in Sections 621.4 through 621.7.
If the work described in the application contains an appreciable amount of unclaimable material, the applicant should identify the unclaimable material that appears in that work and should exclude that material from the claim. Specifically, the applicant should provide a brief, accurate description of the unclaimable material in the appropriate field/space of the application. In the case of an online application, the applicant should provide this information in the Material Excluded field on the Limitation of Claim screen. In the case of a paper application, the applicant should provide this information in space 6 (A) in the space marked Preexisting Material. For instructions on how to complete these portions of the application, see Section 621.8 (B) below.
In addition, the applicant should identify the new authorship that is being claimed in the application. The applicant should provide this information in the New Material Included field of the online application or in space 6 (B) of a paper application in the space marked Material Added to this Work. In the case of a derivative work, the applicant should provide a brief description of the new or revised material that the author contributed to the work. In the case of a compilation, the applicant should provide a brief description of the preexisting material or data that has been selected, coordinated, and/or arranged by the author. For instructions on how to complete these portions of the application, see Section 621.8 (C) and 621.8 (D).
The information provided in these fields/spaces will appear on the certificate of registration in the field marked Limitation of Copyright Claim and in the online public record in the fields marked Preexisting Material and Basis of Claim (regardless of whether the applicant submits an online application or a paper application).
Completing these fields/spaces correctly is essential to defining the claim that is being registered and it ensures that the public record will be accurate. The registration specialist may either annotate the registration record or communicate with the applicant if the work appears to be a derivative work, a compilation, a collective work, or any other work containing an appreciable amount of unclaimable material and if the applicant fails to exclude that unclaimable material from the claim.
• Excluding previously published material. The Slow Food Press published a self-help book titled Navigating the Supermarket. The first edition was published in 2009 and the second edition was published in 2010. Because the second edition contains an appreciable amount of previously published material from the first edition, the publisher should exclude that material from the application to register the second edition by stating “previously published edition” in the Material Excluded field and “new text” in the New Material Included field.
• Excluding previously registered material. ClamCake Software created a computer program called Sharkbyte v. 1.0, which was registered in 1999. ClamCake used an appreciable portion of the source code for this program to create a new program called Sharkbyte v. 2.0. Because the new program contains an appreciable amount of previously registered material, ClamCake should exclude that material from the application to register Sharkbyte v 2.0 by providing the registration number for version
1.0 in the Previous Registration field or by stating “previously registered version” in the Material Excluded field and by stating “new computer code” in the New Material Included field.
• Excluding public domain material. Alice Masters created a poster that is closely based on illustrations that appear in the book The Emerald City of Oz by L. Frank Baum. Because her poster contains an appreciable amount of public domain material, Alice should exclude that material from the application to register her poster by stating “some public domain material” in the Material Excluded field and “new artwork” in the New Material Included field.
• Excluding material that is owned by an individual or legal entity other than the claimant. Kieran O’Brien submits an application to register a children’s book. The copyright notice for this work reads “illustrations ¬© Kieran O’Brien; text ¬© Leaf Garrett.” If the children’s book is not a joint work, and if Kieran does not own the copyright in the text, he should exclude that material from the application to register his illustrations by stating “text by Leaf Garrett” in the Material Excluded field and “2-D artwork” in the New Material Included field.
• Limitation of claim not required. Susana Fernandez wrote the first draft for her novel in 1995. The following year she wrote a short story, which was never published or registered. In 2005, she incorporated portions of her short story into the novel. The short story and the initial draft of the novel would not be considered unclaimable material, because that material has not been published before, it has not been registered before, it is not in the public domain, and it is not owned by a third party.