621.9 (A) (2) Applicant Has Not Asserted a Claim in Unclaimable Material
If it is clear that the claimant is not asserting a claim to copyright in the unclaimable material that appears in the work, the registration specialist may register the claim without communicating with the applicant. In making this determination, the registration specialist may consider the title of the work or any other information found in the deposit copy(ies) or elsewhere in the registration materials.
Examples:
• The Office receives an online application for a photograph of a terra cotta sculpture. In the Author Created field the applicant checked the box for “photograph,” but the Limitation of Claim fields have not been completed. The applicant is clearly asserting a claim in the photograph, and has not asserted a claim in the sculpture depicted in the photograph. The registration specialist will register the claim.
• Leading Edge Records submits an online application for a sound recording. In the Author Created field the applicant checks the box for “sound recording,” but the Limitation of Claim fields have not been completed. The liner notes indicate that three songs have been used with permission from Monkey’s Uncle Music Publishing. The applicant should have disclaimed these songs in the Material Excluded field, because they appear to be owned by a third party. Nevertheless, the scope of the claim is clear, because the applicant is asserting a claim in the sound recording, but is not asserting a claim in the music embodied in that recording. The registration specialist will register the claim.
• The applicant submits a paper application on Form VA for a lithograph. In space 2 the applicant checks the box for “reproduction of work of art.” The work appears to be a reproduction of a painting by Vincent Van Gogh. Spaces 6 (A) and 6 (B) are blank. The applicant should have disclaimed the Van Gogh painting in space 6 (A) and should have described the new material that the applicant intends to register in space 6 (B). Nevertheless, the scope of the claim is clear, because space 2 states that the author created a reproduction of a preexisting work of art. The registration specialist may register the claim with an annotation, such as: “Regarding authorship information: Art reproductions are derivative works, based on the underlying work of art, per 17 USC 101, definition of ‘derivative work.'”