904 Fixation of Visual Art Works
A visual art work must be “fixed” in a “tangible medium of expression” to be eligible for copyright protection. 17 U.S.C. § 102 (A). The authorship may be new or may consist of derivative authorship. The basic requirement is that the work must be embodied in some form that allows the work to be “perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101 (definition of “fixed”). The U.S. Copyright Office will register visual art works that are embodied in a wide variety of two-dimensional and three-dimensional forms, such as:
• Photographic film.
• Digital files.
• Holograms and individual slides.
• “Soft sculptures,” such as stuffed animals and puppets.
• Edible materials, such as a molded chocolate rabbit or a frosting design on a cake.
• Constructed buildings, architectural drawings, blueprints, or models depicting an architectural work.
This is not an exhaustive list and the Office will consider other forms of embodiment on a case-by-case basis.
While most visual art works are fixed by their very nature (e.g., a sculpture, a painting, or a drawing), there are some works that may not be sufficiently fixed to warrant registration. Specifically, the Office cannot register a work created in a medium that is not intended to exist for more than a transitory period, or a medium that is constantly changing.
Most visual art works satisfy the fixation requirement, because the deposit copy(ies) or identifying material submitted with the application usually indicate that the work is capable of being perceived for more than a transitory duration. However, the fact that uncopyrightable material has been fixed through reproduction does not make the underlying material copyrightable. For example, a photograph of a fireworks display may be a copyrightable fixation of the photographic image, but the fireworks themselves do not constitute copyrightable subject matter.
As a general rule, applicants do not have to submit an original or unique copy of a visual art work in order to register that work with the Office. In most cases, applicants may submit photographs or other identifying materials that provide the Office with a sufficient representation or depiction of the work for examination purposes.
When completing an application, applicants should accurately identify the work that is being submitted for registration, particularly when submitting identifying material. For example, if the applicant intends to register a sculpture and submits a photograph of the sculpture as the identifying material, the applicant should expressly state “sculpture” in the application. Otherwise, it may be unclear whether the applicant intends to register the photograph or the sculpture shown in the photograph.
Before submitting identifying material for a published visual art work, applicants should determine whether the work is subject to the best edition requirement. As a general rule, an applicant should submit the “best edition” if the work was published in the United States on or after January 1, 1978. The criteria used to identify the best edition of a particular work are listed in the “Best Edition Statement,” which is set forth in Appendix B to Part 202 of the Office’s regulations. It is also posted on the Office’s website in Best Edition of Published Copyrighted Works for the Collections of the Library of Congress (Circular 7b). For specific deposit requirements for different types of visual art works, see Chapter 1500, Section 1509.3.