905 Copyrightable Authorship in Visual Art Works
The U.S. Copyright Office may register a visual art work (I) if it is the product of human authorship, (ii) if it was independently created (meaning that the work was not merely copied from another source), and (iii) if it contains a sufficient amount of original pictorial, graphic, sculptural, or architectural authorship. The Office reviews visual art works consistent with the general principles set forth in Chapter 300 (Copyrightable
Authorship: What Can Be Registered), as well as the guidelines described in this Chapter.
“In order to be acceptable as a pictorial, graphic, or sculptural work, the work must embody some creative authorship in its delineation or form.” 37 C.F.R. § 202.10 (A). The author’s intentions concerning the use of the work, or the number of copies made is irrelevant to this determination. The fact that the work may or may not be protected by a utility or design patent is also irrelevant. See id.
In all cases, the work “must be original, that is, the author’s tangible expression of his [or her] ideas. Such expression, whether meticulously delineating the model or mental image or conveying the meaning by modernistic form or color, is copyrightable.” Mazer v. Stein, 347 U.S. 201, 214 (1954).
In the case of two-dimensional works, original authorship may be expressed in a variety of ways, such as the linear contours of a drawing, the design and brush strokes of a painting, the diverse fragments forming a collage, the pieces of colored stone arranged in a mosaic portrait, among other forms of pictorial or graphic expression.
In the case of three-dimensional works, original authorship may be expressed in many ways, such as carving, cutting, molding, casting, shaping, or otherwise processing material into a three-dimensional work of sculpture.
Likewise, original authorship may be present in the selection, coordination, and/or arrangement of images, words, or other elements, provided there is a sufficient amount of creative expression in the work as a whole.
In all cases, a visual art work must contain a sufficient amount of creative expression. Merely bringing together only a few standard forms or shapes with minor linear or spatial variations does not satisfy this requirement.
The Office will not register works that consist entirely of uncopyrightable elements (such as those discussed in Chapter 300, Section 313 and Section 906 below) unless those elements have been selected, coordinated, and/or arranged in a sufficiently creative manner. In no event can registration rest solely upon the mere communication in two- or three-dimensional form of an idea, method of operation, process, or system. In each case, the author’s creative expression must stand alone as an independent work apart from the idea which informs it. 17 U.S.C. § 102 (B); Mazer, 347 U.S. at 217 (“[A] copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – ” not the idea itself.”).
For more information on copyrightable authorship, see Chapter 300 (Copyrightable Authorship: What Can Be Registered).