906.3 Colors, Coloring, and Coloration
Mere coloration or mere variations in coloring alone are not eligible for copyright protection. 37 C.F.R. § 202.1 (A).
Merely adding or changing one or relatively few colors in a work, or combining expected or familiar pairs or sets of colors is not copyrightable, regardless of whether the changes are made by hand, computer, or some other process. This is the case even if the coloration makes a work more aesthetically pleasing or commercially valuable. For example, the U.S. Copyright Office will not register a visual art work if the author merely added relatively few colors to a preexisting design or simply created multiple colorized versions of the same basic design. Copyright Registration for Colorized Versions of Black and White Motion Pictures, 52 Fed. Reg. 23,443, 23,444 (June 22, 1987). Likewise, the Office generally will not register a visual art work if the author merely applied colors to aid in the visual display of a graph, chart, table, device, or other article.
The Office understands that color is a major element of design in visual art works, and the Office will allow an applicant to include appropriate references to color in an application. For instance, if an applicant refers to specific colors or uses terms such as “color,” “colored,” “colors,” “coloring,” or “coloration,” the registration specialist generally will not reject the claim if the work contains a sufficient amount of creative authorship aside from the coloration alone.
• Cleo Camp took a photograph of a tree and digitally edited the image to add new shades of red and blue. Cleo submitted an application to register the altered photograph and described her authorship as “original photograph digitally edited to add new shades of blue and red in certain places.” The registration specialist will register the claim because the creativity in the photograph, together with the alteration of the colors, is sufficiently creative.
• Charles Carter took a digital image of Leonardo da Vinci’s Mona Lisa and added different hair color, colored nail polish, stylized clothing, and darkened skin. Charles submitted an application to register the image, and described his authorship as “changed public domain
Mona Lisa to green and pink streaked hair; purple nail polish; prisoner-striped black-white clothing; and darkened rouge on cheeks.” The registration specialist will register the work because the changes in color are sufficient to constitute a new work of authorship.
• Clara Connor found a black and white photograph that is in the public domain. She altered the image by adding a variety of colors, shades, and tones to make it appear as if the photo was taken in a different season. Clara submitted an application to register the revised photograph and in the Author Created and New Material Included fields she described her authorship as “adapted public domain black-white image by adding different colors, shades, tones, in various places of derivative work.” The registration specialist may register the work if Clara made sufficient changes to the preexisting photograph.
• Chris Crisp purchased a coloring book and colored the images with watercolors. He submitted an application to register the work and described his authorship in the Author Created and New Material Included fields as “added selected colors to pictures in someone else’s coloring book.” The registration specialist may refuse to register the work if the changes were dictated by the coloring book and the addition of color was not sufficiently creative.
• Colette Card registered a fabric design called “Baby Girl Fabric,” which contains a pink background with stylized images of cribs, rattles, and pacifiers. Colette then created a fabric design called “Baby Boy Fabric” that is identical to the “Baby Girl Fabric” design, except that the background color is blue instead of pink. Colette attempts to register the “Baby Boy Fabric,” disclaiming the prior registration for the “Baby Girl Fabric.” The registration specialist will refuse to register the blue variation because it is identical to the preexisting “Baby Girl Fabric” design aside from the mere change in background color.