716 Instructional Texts and Instructional Works
Textbooks and other instructional texts may be registered if the work contains a sufficient amount of original authorship. The statute defines an “instructional text” as “a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.” See 17 U.S.C. § 101 (definition of “work made for hire”). As the legislative history explains, this category includes “textbook material,” regardless of whether the work is published “in book form or prepared in the form of text matter.” H.R. REP. NO. 94-1476, at 121 (1976) reprinted in 1976 U.S.C.C.A.N. at 5737; S. REP. NO. 94-473, at 105 (1975). The “basic characteristic” of an instructional text is that the work must be prepared for “use in systematic instructional activities,” rather than a work “prepared for use by a general readership.” H.R. REP. NO. 94-1476, at 121 (1976) reprinted in 1976 U.S.C.C.A.N. at 5737; S. REP. NO. 94-473, at 105 (1975). Instructional texts are among the nine categories of works that can be specially ordered or commissioned as a work made for hire, provided that the parties expressly agree in a signed written instrument that the work shall be considered a work made for hire. For a discussion of works made for hire, see Chapter 500, Section 506.
Other types of instructional works may be registered with the U.S. Copyright Office, provided that the work, taken as a whole, contains a sufficient amount of original authorship. Examples of works that may satisfy this requirement include cookbooks, instructions for knitting, crocheting, or needlework, instructions for operating a machine, appliance, or other device, and similar types of works.
If text is the predominant form of authorship, an instructional text or other instructional work may be registered as a nondramatic literary work. If the predominant form of authorship consists of artwork, illustrations, or photographs, the work may be registered as a work of the visual arts. See 37 C.F.R. § 202.3 (B) (1) (I), (iii). For information concerning the registration requirements for stencils, patterns, and how-to books, see Chapter 900, Section 920.
The Literary Division may register an instructional work that explains how to perform a particular activity, provided that the work contains a sufficient amount of text, photographs, artwork, or other copyrightable expression. Likewise, the Literary Division may register an instructional work that illustrates or describes the end result for a particular activity or technique, such as a drawing of a crochet pattern or a photograph of a product that has been fully assembled.
When asserting a claim in an instructional text or an instructional work, the claim should be limited to the text, artwork, and/or photographs that appear in the work, the applicant should provide the name of the author who created that material, and the applicant should provide the name of the claimant who owns the copyright in that material. The Literary Division may accept a claim in “text” if the work contains a sufficient amount of written or editorial expression, or a claim in “artwork” and/or “photograph(s)” if the work contains a sufficient amount of pictorial or graphic expression. When completing an online application, this information should be provided in the Author Created field, and if applicable, also in the New Material Included field.
When completing a paper application on Form TX, this information should be provided in space 2, and if applicable, also in space 6 (B). For guidance on completing these portions of the application, see Chapter 600, Sections 618.4 and 621.8.
A registration for a cookbook covers the instructional text that appears in the work, as well as any photographs or illustrations that are owned by the copyright claimant. However, the registration does not cover the list of ingredients that appear in each recipe. Likewise, a registration for a cookbook or other instructional work does not cover the activities described in the work, because procedures, processes, or methods of operation are not subject to copyright protection. See 17 U.S.C. § 102 (B); 37 C.F.R. § 202.1 (A); see also Policy Decision on Copyrightability of Digitized Typefaces, 53 Fed. Reg. 38,110, 38,112 (Sept. 29, 1988) (“[T]he explanation and illustration of recipes is copyrightable even though the end result – the food product – is not.”). The registration specialist may add an annotation, may communicate with the applicant, or may refuse registration if the applicant appears to be asserting a claim to copyright in a particular activity or a list of ingredients, if the work merely illustrates the specific hand or body movements for performing a particular activity, or if the instructions, taken as a whole, are de minimis.
Examples:
• Martha Custer submits an application to register a set of basic instructions for knitting a sweater. In the Author Created field, she checks the box for “text.” There are dozens of steps in the process, and the instruction for each step is one sentence long. The registration specialist will register the claim, because the instructional text, taken as a whole, contains a sufficient amount of expression to support a registration.
• Jules Kinder submits an application to register a cookbook titled Pie in the Sky. In the Author Created field, the applicant asserts a claim in “text, photographs, and compilation of ingredients.” Each recipe contains a list of ingredients, instructions for making a pie, and a photograph of the finished product. The claim in text and photographs is acceptable, but the claim in compilation is not, because the applicant appears to be asserting a claim in a mere listing of ingredients. The registration specialist may add an annotation, such as: “Regarding authorship information: Compilation is mere listing of ingredients or contents; not copyrightable. 37 CFR 202.1.”
• The Abigail Adams Co. submits an application to register a set of basic instructions for knitting a scarf. In the Author Created field, the applicant asserts a claim in “text, photographs, and artwork.” The work contains illustrations, photographs, patterns, and other artwork, but the instructional text is extremely basic, abbreviated, and formulaic, such as “knit 1, purl 2.” The registration specialist will communicate with the applicant. The claim in “artwork” and “photographs” is acceptable, but the claim in “text” is not, because the instructional text, taken as a whole, is de minimis.
• Paulina Neumann submits an application to register a recipe for a caesar salad. In the Author Created field, the applicant asserts a claim in “text.” The work contains a list of eleven ingredients together with the following instructions: ” (1) puree anchovies, garlic, dijon, egg yolks; (2) drizzle oil in gradually to emulsify; (3) add lemon, parmesan cheese, salt, pepper, worcestershire and tobasco sauce.” The registration specialist will refuse to register the claim, because the list of ingredients is not copyrightable and the instructional text is de minimis.
For a discussion of the deposit requirements for an instructional work, see Chapter 1500, Section 1509.1 (I).