907.2 Permission to Use Preexisting Material
Authors often incorporate material created by third parties into their visual art works, such as a third party photograph that is used in a collage or third party clip art that is used in a logo. Generally, if the third party material is protected by copyright, the applicant must exclude that material from the claim using the procedure described in Chapter 600, Section 621.8. However, the applicant does not have to disclaim uncopyrightable elements, such as letters of the alphabet or geometric shapes.
The U.S. Copyright Office generally does not investigate the copyright status of preexisting material or investigate whether it has been used lawfully. However, the registration specialist may communicate with the applicant to determine whether permission was obtained where a recognizable preexisting work has been incorporated into a visual art work. The applicant may clarify the lawful use of preexisting material by including a statement to that effect in the Note to Copyright Office field of the online application or in a cover letter submitted with the paper application. If it becomes clear that preexisting material was used unlawfully, the registration specialist will refuse to register the claim.
• Theresa Tell creates a collage that combines her own artwork with logos from a number of famous companies. She files an application to register her “two-dimensional artwork.” Depending on the facts presented, the registration specialist may ask the applicant to exclude the logos from the claim by stating “preexisting logos incorporated” in the Material Excluded field. In addition, the specialist may ask Theresa to limit her claim by stating “selection and arrangement of preexisting logos with new two-dimensional artwork added” in the New Material Included field.
For more information on derivative works incorporating third party content, see Chapter 300, Section 313.6 (B).