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Class B (including BB)

Chapter 2

COPYRIGHTABLE MATTER

Part 2.3 PERIODICALS (CLASS B)

Outline of Topics

2.3.1	GENERAL RULES
	I.	Publication with notice
	II.	Manufacturing requirements
	III.	Registration
2.3.2	WHAT ARE PERIODICALS
	I.	In general
	II.	Annual publications
	III.	Irregular publications
	IV.	Series of books
	V.	Loose-leaf material
	VI.	Post-Office classification
2.3.3	SEPARATE EDITIONS OF A PARTICULAR ISSUE
	I.	Periodicals other than daily newspapers
	II.	Daily newspapers
2.3.4	CONTRIBUTIONS TO PERIODICALS
	I.	Separate registration
	II.	Classification

Chapter 2. COPYRIGHTABLE MATTER

Part 2.3 PERIODICALS (CLASS B)

2.3.1

General Rules

I

Publication with Notice

a.

Each separate issue of a periodical must be published with appropriate notice of copyright before that issue can be registered. (As to Publication, see Chapter 3; as to Notice, see Chapter 4.

b.

Each separate issue published with notice is to be registered as a separate work.

II.

Manufacturing requirements.

a.

To be registered in Class B, the following periodicals must be manufactured in the United States (see Chapter 6):

1.

An English-language periodical of which the "author" (i.e., publisher) is a U. S. citizen or domiciliary. For the possibility of ad interim registration, see item III of this Part

2.

A foreign-language periodical of which the "author" is a U. S. citizen or domiciliary

3.

An English-language periodical by a foreign "author" first published in the United States

4.

An English-language periodical by a foreign "author" which was first published outside the United States, but which has not secured copyright under the U.C.C. exemptions of sec. 9(c). For the possibility of ad interim registration, see item III of this Part.

b.

No affidavit of U. S. manufacture is required for periodicals, but the application requires information concerning any portions of the work manufactured abroad.

III

Registration.

a

Domestic periodicals. Registration is required for periodicals of U. s. origin which comply with the statutory formalities. The claim should be filed on Form B, accompanied by two complete copies the periodical and a $6.00 of registration fee.

b,

Foreign periodicals.

1.

Ad Interim registration

(a)

Claim to ad interim copyright in a periodical manufactured and first published outside the U.S.A. in the English language should be filed within six months of publication abroad, on Form. A-B Ad Interim, unless copyright has been secured by virtue of the U.C.C. exemptions of Sec. 9(e), in which event registration is optional but if applied for should be on Form A-B Foreign. Con­cerning deposit requirements, see 17 U.S.C., § 215, and topics 5.1.5 and 5.2.2 of this compendium.

(b)

After ad interim registration, an edition of the same periodical manufac­tured and published in the U. S. (within 5 years) may be registered on Form B. When portions of the foreign periodical are published with notice in the U. S. Within the 5-year period. (e.g., a novel first published serially abroad), regis­tration may be made in the appropriate class.

2.

Foreign-language periodicals. Claim to copyright in a periodical by a foreign "author", manufactured outside the U.S.A., in a language or languages other than English, should be filed on Form A-B Foreign.

2.3.2

What are Periodicals.

I.

In general. Periodicals registrable in Class B include newspapers, magazines, reviews, bulletins, etc. issued at resular intervals of less than a year, the successive issues bearing the same title (with a distinguishing number or date tor each issue) and being similar in the general character ot their subject matter.

Examples:

(1)

A daily or weekly newspaper

(2)

A literary monthly containing in each issue an installment of a novel and a number of essays, short stories, and poems by various authors

(3)

A weekly journal of' opinion containing in each issue a number of articles, editorials, and cartoons on current political events

(4)

A weekly digest of news events

(5)

A semi-annual bulletin reporting current developments in the field of' biochemistry

(6)

A monthly publication containing informtional articles and illustrations on gardening

(7)

A quarterly review and forecast of business conditions

(8)

A weekly circular advertising various arti­cles of merchandise

(9)

A monthly publication containing in each issue a new assortment of advertising copy with accompanying mats

II.

Annual publications.

a.

Publications issued at intervals of a year or more (e.g., yearbooks, almanacs, annual or biennial reports) will not be registered in Class B [but may be registrable in Class A).

b.

An annual index or a special supplement to a periodical, having the same title as the peri­odical, may be registrable in Class B.

III.

Irregular publications. Publications issued at ir­regular intervals generally will not be registered in Class B (but may be registrable in Class A).

IV.

Series of books. A series of books, though issued at regular intervals under a general series title, will not be registered in Class B (but may be reg­istrable in Class A).

Examples of series of books:

(1)

A number of volumes, each on a different subject; e.g., the issue successively of a book on grammar, one on history, one on economics, on chemistry, etc.

(2)

A series of volumes, each an individual work complete in itself; e.g., the issue bi-weekly of one of the "100 great books ",the monthly selections of a book club, the issue each month of one full-length mystery story

(3)

The successive issues of revised editions of a book; e. g a d1rectory or a technical handbook revised quarterly

(4)

A single work issued in parts; e.g., the separate volumes of an encyclopedia, or of a set of twelve books comprising a training course.

V.

Loose-leaf reporter material. Loose-leaf material published at intervals as additional or replacement pages for loose-leaf books is considered properly classifiable as a book, and the Office will recom­mend registration in Class A. If the applicant insists, the Office will register such material in Class B under the rule of doubt.

VI.

Post-Office classification. The entry of a publi­cation as second class matter at the Post Office is a persuasive indication that it may be registered as a periodical, but is not conclusive.

2.3.3

Separate Editions of a Particular Issue

I.

Periodicals other than daily newspapers.

a.

Where an issue of a periodical is published in two or more separate editions containing differ­ ent copyrightable matter, separate registrations will be required.

Examples:

(1)

English, Spanish, and French editions of a magazine

(2)

U.S., Canadian, and European editions of a weekly newsmagazine, in which some of the contents are changed to correspond with the local interests of readers.

b.

Where the only difference between the editions is in the cover, separate registrations will not be required. If separate registrations are requested,they may be made with a cautionary letter.

Example: Ellery Rex's Mystery Magazine, published with a flashy cover for newsstand sa1e and a conservative cover for subscribers.

c.

Where the only difference between the editions

is in advertising matter, separate registrations will not be made unless the advertisements belong (or could belong) to the publisher of the periodical.

d.

Where the only difference between the editions is in uncopyrightable elements such as typography, size, coloring, paper stock, etc., separate regis­trations will not be made, but copies of the "best edition" may be requested. See topic 5.3.1.

II.

Daily newspapers.

a.

Where a daily newspaper is published in two or more separate editions containing different copy­rightable matter, separate registrations may be made.

Examples

(1)

"Home, II "City," "Final" and "Red star" editions

(2)

"Bronx," "Manhattan," and "Brooklyn" editions.

b.

Where the Office is informed that a daily news­ paper is published in separate editions contain­ing different copyrightable matter, it may, in appropriate cases, suggest the advisability of making separate registrations. If the applicant refuses to make more than one registration, the Office may suggest the advisability of including a limiting statement in the notice on later editions (e.g., "Copyright claimed in contents of Home Edition only.")

c.

Where an applicant chooses to deposit copies or all editions with a single application, only the copies of the earliest edition will be stamped with the registration numbers.

2.3.4

Contributions to Periodicals

I.

Separate registration

a.

A copyrightable contribution to a periodical, it it is published with a separate notice of copy­right, may be registered separately. (As to separate notice, see topic 4.2.1, IV.)

b.

An unpublished manuscript intended as contribution to a periodical is not registrable.

c.

A contribution bearing no separate notice of copyright is not registrable separately. If the author of a contribution bearing no separate notice requests separate registration, the Office may suggest the possibility of his obtaining and recording an assignment from the publisher of the periodical.

II.

Classification.

a.

A print advertising articles of merchandise, pub­lished with separate notice in a periodical, is not registrable in Class B as a contribution to a periodical, but is to be registered on Form KK as a commercial print.

b.

Except for commercial prints, copyrightable con­tributions to a periodicals bearing separate notice, may be registered in Class B (on Form BB).

c.

A contribution consisting of a particular class of copyright matter (e.g., a drama, a piece of music, a map, a photograph, etc.), if it bears an appropriate notice, may be registered in that particular class (a drama in Class D, etc.) if the applicant so desires. However if book material is filed with Form A, Form BB will be

suggested.

d.

Copyrightable matter (e.g., a pictorial emblem) to be reproduced in each issue of a periodical as part of the format is not registrable in Class B as a contribution. But if it bears a

separate notice, it may be registered separately in the appropriate class (e.g., a pictorial emblem in Class K).

End of Part 2.3.

Pages 2-131 through 2-140 reserved for future use.

Class C

Chapter 2

COPYRIGHTABLE MATTER

Part 2.4 WORKS PREPARED FOR ORAL DELIVERY (CLASS C)

Outline of Topics

2.4.1	WHAT IS A WORK PREPARED FOR ORAL DELIVERY"?
	I.	Statutory provisions
	II.	Definition
	III.	Examples
2.4.2	ONLY UNPUBLISHED WORKS REGISTRABLE IN CLASS C
	I.	Published works not registrable
	II.	Later publication
	III.	No notice required
2.4.3	ONLY NON-DRAMATIC TEXTUAL WORKS REGISTRABLE IN CLASS C
	I.	Dramatic material
	II.	Copy deposited should be a textual manuscript
2.4.4	PREPARATION AND SUITABILITY FOR ORAL DELIVERY
	I.	Preparation in the first instance for oral deliv ery
	II.	Suitability for oral delivery

Part 2.4 WORKS PREPARED FOR ORAL DELIVERY (CLASS C)

2.4.1

What is a "Work Prepared for Oral Delivery"?

I.

Statutory provisions. Class C comprises "lectures, sermons, addresses (prepared for oral delivery)." (17 U.S.C. §5(c).) The statute also refers to "a lecture, sermon, address or similar production" (17 U.S.C. §1 (c)), which presumably covers the same class of works.

II.

Definition. A "work prepared for oral delivery" is an unpublished, nondramatic textual work written in the first instance for oral delivery before an audience, or on sound recordings, motion picture sound tracks, etc. It is to be distinguished from a work which, though capable of oral delivery, was written in the first instance for publication and individual reading.

III.

Examples:

a.

The manuscript of a classroom lecture, of an evangelist's sermon, of an after-dinner speech, or of a debate

b.

The script of a non-dramatic radio or tele­vision broadcast or audition

c.

The script of a motion picture sound track

d.

The text of an entertainer's monolog

e.

The text of a talk to accompany the showing of a filmstrip

f.

The story to be delivered by a narrator in conjunction with a pageant

g.

The text of a children's story, or of Spanish lessons, to be recorded on phonograph records

2.4.2

Only Unpublished Works Registrable in Class C.

I.

Published works not registrable. Even though a work has been prepared in the first instance for oral delivery, it cannot be registered in Class C if publication has taken place before the application is submitted. A work of this type should be registered in Class A as a "book," if published with the required copyright notice.

Example:

The text of a speech by the president of General Motors, vhich is released to the press in mimeographed form on the morning of the day the speech is to be delivered.

II.

Later publication. When a work that has been registered in Class C is later published with notice, registration should be made as a "book" in Class A, even if the text is exactly the

same.

III.

No notice required. Since only unpublished works are registrable in Class C, no notice requirements pertain to this class.

2.4.3

Only Non-dramatic Textual Works Registrable in Class C.

I.

Dramatic material.

a.

If the work appears clearly to be a dramatic composition (that is, if it has a plot and contains dialogue and directions concerning the action or production) an application on

Form C will be questioned, and a new appli­cation on Form D will be suggested. (As to vhat constitutes a dramatic composition, see Part 2.5.)

b.

If the dramatic character of the work 1s

doubtful, or if the dramatic element is not the predominant feature of the work, the claimant's choice of Class C will be accepted without comment.

Example:

The script for a commercial film sound track consisting mainly of straight narration, but including two short dramatic scenes.

II.

Copy deposited should be a textual Manuscript.

a.

As a rule the copy deposited for registration in Class C should be a manuscript containing the complete text of the work as it has been, or is expected to be, delivered. A mere out­line or collection of notes is not registrable in Class C (see item 2.4.4.11.a., below).

b.

A sound recording of a work prepared for oral delivery is not acceptable for registration in Class C. When a sound recording is deposited, the Office will reject the claim but point out to the applicant the possibility of writing out the text in manuscript form and then making registration on the basis of

the manuscript . (As to the problem of the sale of recordings as publication, see item 3·l·3·IV.)

c.

Where the copy deposited consists of Class C material combined with other material, the practice to follow depends upon the nature of the other material.

1.

Where the other material, while registra­ble in unpublished form, cannot be con­sidered an actual part of the work pre­pared for oral delivery, separate regis­trations will be suggested.

Example

The text of a television commercial advertising electrical appliances, and some unpublished drawings intended to be used in magazine advertisements of the appliances.

2.

Where the other material is not registra­ble but :is inseparable from the regstra­ble part, entry will be made without correspondence, unless it is obvious that the applicant is under a misapprehension.

Example:

3.

Where the other material is not registra­ble, and cannot be considered an actual part of the work prepared for oral delivery, the applicant will be requested to redepos­it the work with the unregistrable material omitted.

Example.

4.

Where the other material is registrable in unpublished form and can be considered a part of the work prepared for oral de­livery, the following practices apply:

(a)

If application is filled on Form C, and the portion of the work prepared for oral delivery will support a registration in Class C, a single

registration in the applicant's choice of' class me;y be made, even though the other material pre­dominates.

Example:

A one-page speech, accompanied by eight drawings to be used as illustrations by the speaker.

(b)

II.c.4.b

Example:

A short two-line narration intended to be spoken as part of an original musical composition.

(c)

If both the Class C material and the other material are substantial and fairly evenly balanced, the applicant's choice of class will generally be accepted without correspondence although in appropriate cases the possibility of separate registrations may be pointed out.

Example:

A narration extolling the virtues of chicken chow mein, accompanied by original background music which was composed to be placed with the nar­ration but is not integrated with it, can be registered in Class C or Class E; or the two elements can be registered separately.

2.4.4

Preparation and Suitability for Oral Delivery.

I.

Preparation in the first instance for oral delivery.

a.

A manuscript that has clearly been pre­pared in the first instance for publi­cation and individual reading, rather than for oral delivery before an

audience, is not registrable in un­ published form, although in rejecting the claim the Office may point out the possibility of registration in Class A as a "book" after publication with notice.

Examples:

 

(1)

A 300-page novel

(2)

The usual poem

(3)

A manuscript consisting primarily of statistical tables and formulae

(4)

A Ph.D. dissertation

b.

In determining whether a manuscript con­stitutes a work prepared for oral de­livery or an unpublished book, some significance may be attached to the form in which the work is presented,and the presence of such elements as a little page, preface, foreword, table of contents, chapter headings, bibliog­raphy, footnotes, index, references to "the reader," specific page references in the text, illustrations, etc. The presence of some of these elements need not necessarily be conclusive, however.

c.

If the applicant insists that the manu­script was prepared in the first instance for oral delivery, and this does not seem altogether implausible, registration may be made in Class C.

d.

The mere fact that the claimant has read, or intends to read, his work orally to a few friends does not make it a "work pre­pared for oral delivery," if it is clear that the work was prepared in the first instance for publication.

Example:

Claimant states in a letter of transmittal that he has sent his work to various magazines.

II.

Suitability for oral delivery.

a.

To be registrable in Class C, a work must be complete enough for actual oral presentation in its present form, without substantial further development.

1.

An outline, synopsis, or description of the idea of a television or radio pro­gram, stage show, lecture series, etc., is not registrable in Class C, even if fairly detailed.

2.

Where the applicant deposits an outline or synopsis of a series of programs, to­gether with one sample script, the appli­cant will be asked to detach the outline or synopsis and register the script alone, and will be cautioned that registration for the script will not protect the idea or plan, the future scripts in the series, or the series as a whole.

3.

A general outline of the ideas or information to be expounded in a speech, such as a list of topic words or sentences, or a group of brief notes, is not regis­trable in Class C. However, if a script is actually capable of oral delivery, the fact that it is in outline form will not preclude registration in Class C.

b.

A script in sufficient detail for delivery substantially as written is registrable as a work prepared for oral delivery, even though the script indicates that other material is to be interpolated or added.

Examples:

(1)

Script containing occasional refer­ences to the use, during the course of the speech, of unspecified pic­tures as illustrations.

(2)

Script consisting of the master of ceremonies' remarks during the course of a panel show.

(3)

Script consisting of the interviewer's portion of a television interview.

End of Part 2.

Pages 2-151 through 2-180 reserved for future use.

Class E

Chapter 2

COPYRIGHTABLE MATTER

Part 2.6 MUSIC (CLASS E)

Outline of Topics

 

2.6.1	WHAT ARE MUSICAL COMPOSITIONS
	I.	Generally
	II.	Evaluation of musical content
	III.	Evaluation of textual content
	IV.	Books of music
2.6.2	NATURE AND COMPLETENESS OF COPIES DEPOSITED
	I.	Conventional notation not necessary
	II.	Sound recordings not acceptable
	III.	Completeness of copies deposited
2.6.3	REQUIREMENTS OF REGISTRATION FOR MUSICAL COMPOSITIONS
	I.	Unpublished musical compositions
	II.	Published musical compositions
2.6.4	NEW VERSIONS OF MUSICAL COMPOSITIONS
	I.	In general
	II.	Adaptations or arrangements
	III.	Revisions or additions
	IV.Editing
	V.	New lyrics
	VI.	Compilations

2-181

Part 2.6 MUSIC (CLASS E)

2.6.1

What are musical compositions.

I.

Generally. To constitute a "musical composition" for purposes of copyright registration in Class E, a work must generally contain notations representation a succession of musical sounds, usually in some definite melodic and rhythmic pattern. The work may consist of music alone, or of words and music combined. A work Consisting of words alone is not registrable in Class E.

II.

Evaluation of musical. content.

a.

Three elements are usually present in a musical composition; melody (a succession of single tones), rhythm (groupings of tones according to accent and time value), and harmony (chords of differing pitch in various related progressions or modulations). The presence of all or any one or two of these elements may be considered to constitute a musical composition. However, before making registration tor certain unpublished works, it may be advisable to write to the applicant, pointing out that protection extends only to the material actually deposited, and suggesting that in his own interest he develop his manuscript to supply the missing element.

Examples:

b.

In determining whether a work is a "musical composition" or purposes or copyright registration, the usual standards of musical criticism have no application. The presence of notes does not necessarily presuppose the existence of a tune or of any relationship to a particular mode or key.

c.

To support a registration in Class E, a work of music must represent creative authorship.

1.

A musical score having no element of original composition (e.g., a group of diatonic and chromatic scales for beginning students) is not registrable unless compilation is present. (See topics 2.6.1.IV.c, 2.6.4.VI.)

2.

A phrase consisting of a few musical notes(e.g., the NBC signature; clock chimes), standing alone, would not have sufficient substance to constitute a composition.

3.

To be registrable in Class I, it is not necessary that all of the underlying musical

themes in the composition be original. Variations, popular adaptations, arrangements,and other versions or public domain themes (or of copyrighted themes when permission to use has bean secured) may be registered as new works of authorship. (See topic 2.6.4.)

Examples:

(a)

Variations on a theme by Paganini

(b)

A symphonic arrangement of "Yankee Doodle"

(c)

A popular song based on a theme from Chopin "Fantasie Impromptu"

4.

A work consisting chiefly of text or pictorial matter, although it deals with the subject of music and contains incidental fragments of musical scores, is not registrable in Class I.

Examples:

(a)

A book on some musical subject, with brief musical quotations to illustrate the text

(b)

An advertising print containing a few bars of music to convey the idea of music

(c)

A book explaining a new system of musical notation, illustrated by excerpts from familiar works in the public domain

(d)

A piano instruction chart contain­ing text and diagrams showing notes on the staff and on the piano key­ board

III.

Evaluation of textual content.

a.

Song lyrics.

1.

The words or lyrics of a song are a com­ponent part of the musical composition and may be registered together with the music in published or unpublished form.

2.

The words of a song. without music, are not of themselves a musical composition, and

are not registrable in Class E.

(a)

The words of a song, without the music, are not registrable in un­published form, even if the manu­script indicates that they are to be sung to a well-known melody.

(b)

Words alone may be registered in Class A as a book When published with notice.

3.

The Office prefers that the words of a song be written above or beneath the notes to Which they are sung, but this is not a requirement for registration. A manuscript may be registered in Class E even if the words are on one sheet and the music on another.

b.

Music with text. Where the copy deposited consists of Class E material combined with textual material, the practice to follow depends upon the nature of the textual material:

1.

If the work consists of regis­trable music with a relatively small amount of incidental text (e.g., brief notes about the composer, references to old music from which the theme is derived, etc.), registration be made in Class E in either published or unpublished form.

2.

If the work is submitted as un­published and it consists of registrable music and a substantial amount of text which is in the public domain (e.g., incidental music for & reading of Poe's poems), registration be made in Class E in either published or unpublished form.

3.

If the work is submitted as un­published and it consists of registrable music and a substantial amount of original text which is registrable only in published form, the applicant will be requested to redeposit the manuscript with the text omitted and to file a new appli­cation omitting any reference to the text.

4.

If the work is submitted as un­published and the text consists of a work prepared for oral delivery (e.g., a monolog with musical accompaniment; a musical composition with narration) the following practices apply:

(a)

If application is filed on Form E, and the musical portion of the work will support a registration in Class E, a single registration in the applicants choice of class may be made, even though the Class C material predominates.

(b)

If application is filed on Form E and the musical portion of the work is de minimis or somewhat borderline, but there is substantial Class C material, registration in Class C will be suggested.

(c)

If both the Class E and Class C material are substantial and fairly evenly balanced, the possibility of making separate registrations may be pointed out, al­though a single registra­tion in the class applied for will not be refused.

5.

If the work is submitted as un­published and it consists of registrable music and text which

is dramatic in nature, registra­tion for the work as a whole in Class D as a "dramatico-musical composition" be appropriate.

6.

If the the work is submitted as pub­lished and it consists of regi­strable music and a substantial amount of origina1 text, an ap­plication on Form E will general­ly be accepted; or, if separate notices have been used, separate

registrations may be suggested in Classes E and A.

IV.

Books of music.

a.

In general.

1.

One or more pieces of new music or new arrangements of existing music, published in book form with appropriate music notice, may be reg­istered in Class E. Registration in Class A will generally be dis­couraged unless the applicant clearly wishes it, or unless the notice would be more appropriate for Class A. (See topic 2.6.1.IV.d., below.)

2.

A published book consisting principally of new music or new arrangements of existing music, though also containing a sub stant ial amount of other copyright­ able matter (e. g., an Introduction, pictorial illustrations), may be reg­istered in either Class I or Class A.

b.

Books of existing music with new matter.

1.

A book of music containing both reprintings of existing com­positions and new musical works be registered in Class E.

2.

A book consisting entirely of previously published music, in which the only new matter con­sists of non-musical material, will not be registered in Class E (unless the work represents a new compilation or contains copyrightable editing; see topics 2.6.l.IV.c. and 2.6.4.IV. and VI, below). The book may be regis­trable in Class A, or in some other class appropriate to the new matter.

Examples:

(a)

Chopin Etudes, with new text of suggestions for teachers and students.

(b)

Bach's "Well-Tempered Clavichord" with a new foreword on the histori­cal development of key­board instruments.

(c)

The be song "America" with patriotic pictures and emblems.

c.

Compilations. (See topic 2.6.4.VI)

1.

Published and unpublished compilations of original songs, of original arrangements of songs, or of songs with original lyrics, should generally be registered in Class E.

2.

Where the only registrable ele­ment in a published collection

2.6.2

Nature and completeness of copies deposited.

I.

Conventional notation not necessary. As long as it is intelligible and capable of being read and visually perceived, a work may be accepted for registration in Class E, even it it does not employ the conventional form of music notation.

a.

Copies employing letters, numbers, words, symbols, or other indication may be accepted it it seems possible for someone to decipher the music in the work.

Examples:

b.

A copy containing a score appropriate for the notation of electronic or concrete music may be accepted.

c.

However, if the work is unpublished and it seems impossible for anyone to determine the music from the copies, the applicant will be requested to prepare a new manuscript for deposit.

Examples:

II.

Sound recordings not acceptable. A sound recording of a musical composition is not acceptable for registra­tion in Class E. When a sound recording is deposited, the Office will reject the claim but point out to the applicant the possibility of writing out the composition in manuscript form and then making registration on the basis of the manuscript. (As to the problem of the sale of recordings as publication, see topic 3.1.3.IV.)

III.

Completeness of copies deposited.

a.

Unpublished manuscripts.

1.

As long as the manuscript appears to contain copyrightable music, no effort will generally be made to determine it the words and Music are complete and it the work is in unpublished form. (But see paragraphs 2 and 3, below.)

Example:

Where the manuscript contains music for verse and chorus, but includes words for the chorus only, the claim will not be questioned.

2.

Where the applicant states that the work is incomplete, but indicates that he will complete and submit the unfinished work shortly, the Office may suggest that registration be deferred until the work has been completed.

3.

Where the applicant appears to have skipped a page in copying his manu­script, or where the words end in the middle of a sentence, the Office will question the completeness of the manu­script.

b.

Orchestrations, bundstrations, and instrumental parts.

1.

Where the copies deposited in connection with a published work for orchestra or band consist, only of the piano conductor or condensed score, and there are indications on the copies that other instrumental parts or band books have been published with it as a unit, the Office will request deposit or all parts or books. The same practice should be followed where the part originally de­posited is a full score, even though a full score contains all the music in the other parts in a different form.

2.

Where the copies deposited indicate that the work is a part for a certain kind of instrument (e.g., "for Bass Clef Instru­ments"), and that parts for other instru­ments are also published with it as a unit, the Office will request deposit of all parts, even it they represent mere transpositions of the material on hand.

3.

Where an unpublished Manuscript consists of a "piano part" or "piano conductor" part, registration will generally be made without correspondence or annota­tion.

2.6.3

Requirements of registration for musical compositions.

I.

Unpublished musical compositions.

a.

In general. Claims to copyright in unpublished musical compositions may be registered in Class E. (As to publication, see Chapter 3; as to the formalities of registration, see chapters 5, 9, and 10.)

b.

Two or more versions.

1.

When an applicant submits two or more different unpublished arrangements or other versions of the same composition,separate registrations will be encour­aged. A single registration may be considered if the applicant insists, provided the authorship of each version is the same, and a single identifying title is given.

Examples:

(a)

Arrangements of a composition for piano and for dance orchestra

(b)

English, French, and Spanish versions of a popular song, with different lyrics and minor changes in tempo and phrasing

2.

When an applicant submits two or more unpublished versions of the same com­position, in which the only differences are in uncopyrightable elements, they may be registered together on a single application.

Example:

The same music in different keys

c.

Collections of unpublished musical compositions. A collection of two or more unpublished musical compositions may be registered on one applica­tion when all of the following conditions are met:

1.

The collection is assembled in an orderly arrangement; and

2.

The collection bears a single title identifying the collection as a whole; and

3.

The collection as a whole is the subject of a single claim of copyright; and

4.

All the compositions are by the same author; or, if they are by different authors, the collection as a whole represents the work of a single author in its compilation or editing.

2.

Published musical compositions.

a.

In general. Claims to copyright in musical compositions published with the appropriate copyright notice may be registered in Class E. (As to publication, see chapter 3; as to notice, see chapter 4; as to the formalities of regis­tration, see chapters S, 9, and 10.)

b.

Publication of registered manuscript. When a musical composition, previously registered in unpublished form, is published with appropriate notice, registration should again be made to cover the published edition. (17 U.S.C. 112.)

c.

Books of music. See topic 2.b.l.IV.

2.6.4

New versions of musical compositions.

I.

In general. In order for registration of a new version of an existing musical composition to be valid, the composition employed must be in the public domain or, if copyrighted or protected under common law, must be

used with the owner's permission.

a.

Frequently the claimant of copyright in the new version is also the owner of copyright in the composition employed in the new version, in which case no question of permission arises.

b.

In all cases the Copyright Office will assume that use of the existing material is authorized unless there are fairly clear indications that permission has not been obtained (e.g., where the claimant tells us so.) In the latter case, the Office will not refuse registration for the new version, but will suggest the advisability of securing permission before registering a copyright claim or publishing the work.

II.

Adaptations or arrangements. An adaptation or arrangement of existing music, involving original composition, con­stitutes a registrable new musical work.

Examples:

a.

An adaptation of an organ work for orchestra

b.

A new piano accompaniment for an old English vocal air

c.

An arrangement for dance orchestra of the songs from "The Boy Friend"

III.

Revisions or additions.

a.

The substantial revision of the score of existing music, or the addition to an old score of a substantial amount of new music, creates a registrable new version.

Examples:

1.

The rewriting of a substantial portion

of the music of a previously copyrighted composition

2.

The addition of a piano accompaniment

to a copyrighted lead sheet

3.

A medley of old songs joined together by the interpolation of new music

b.

Minor changes in existing music, such as any musician might readily make, and which are not substantial enough to constitute original composition, do not create a registrable new version.

Examples:

1.

The change of a few notes in the melody of "The star Spangled Banner"

2.

Mere transposition of an old song into a different key

3.

The omission of two measures from an old song

IV.

Editing. Whether editing of a musical composition constitutes registrable "new matter" depends upon its nature and extent. Assuming it is sufficient to con­stitute creative authorship, editing w11l be regarded as a "writing" registrable in Class E.

IV.

New lyrics. (See also topic 2.6.l.III.a.)

a.

The addition of copyrightable new words to existing music creates a new version registrable in Class E.

Examples:

1.

A new verse to "America the Beautituful"

2.

New words to be sung to the melody of

Schumann's "Traumerel"

3.

English translations of the words of

Russian folk songs, accompanied by the music

b.

The setting of an existing poem to existing music, if it involves some element of creative selection and combination, may const1tute a new version or adaptation, registrable as music.

c.

Minor changes in the words of an existing lyric (e. g. change of the words "Mary dear" to "Ellen dear") will not constitute a new version.

VI.

Compilations. (See also topic 2.6.1.IV.c.)

a.

A published or unpublished collection of previously published musical works, in which the assembling, selection, or combination of works represents some degree of original authorship, constitutes a registrable compilation.

Examples:

1.

A collection of compositions tor the violin by various composers

2.

A graded selection of Schuman's composition to the piano

3.

An album of Piano arrangements titled "Hits of the Forties"

b.

The mere republication together of several previously published musical works, where no appreciable degree of original athorship was involved in putting them together, does not constitute a registrable compilation.

Examples:

1.

The songs from "Oklahoma"

2.

Beethoven's twelve contra dances

3.

Mozart's Symphonies Nos. 39, 40, and 41

End of Part 2.6.

Pages 2-202 through 2-270 reserved for future use.

Class G

Chapter 2

Copyrightable Matter

Part 2.8

WORKS OF ART
CLASS G

Outline of Topics

2.8.1	IN GENERAL
	I.	Copyrightable matter subject to registration in Class G
		a.	Constituent elements
		b.	Forms of embodiment
2.8.2	CLASSIFICATION OF WORKS OF ART
	I.	Nature of the material
		a.	Single-page works
		b.	Folders and the like
		c.	Multi-page works
		d.	Contributions to "books" or "periodicals"
		e.	Work of art and text combined
		f.	Three-dimensional works
		g.	utilitarian articles
	II.	Purpose, function, or use for which the material is designed
		a.	Drawings or plastic works of a scien­tific or technical character
		b.	Commercial prints or labels
2.8.3	REGISTRATION REQUIREMENTS
	I.	Copyrightable subject-matter
		a.	Pictorial or graphic material
		b.	Sculptural material
		c.	New matter
		d	Utilitarian articles
	II.	Formalities of registration
		a.	Deposit of copy or copies

Chapter 2

COPYRIGHTABLE MATTER

Part 2.8

WORKS OF ART
(CLASS G)

2.8.1

In general

I.

Copyrightable matter subject to registration in Class G

a.

Constituent elements

1.

Pictorial or graphic material.

Class G is appropriate for the registration of published and unpub­lished pictorial or graphic works containing original authorship of a copyrightable nature. such as, for example, paintings, drawings, etchings, engravings, and two­dimensional abstract or representa­tional designs.

2.

Sculptural material. Class G is appropriate for the registration of published and unpublished three­ dimensional sculptural works containing original authorship of a copyrightable nature, such as, for

example, statuary, carving in relief, and three-dimensional abstract or representational designs.

3.

Text. Class G is not appropriate for works which are primarily textual, although the presence of captions and incidental text in a work which is primarily pictorial, graphic, or sculptural will not prevent registra­tion in Class G.

b.

Forms of Embodiment Copyrightable graphic, pictorial, or sculptural material capable of supporting registra­tion in Class G may be embodied in a variety of forms, including both orna­mental and useful articles.

1.

Ornamental articles. This category includes all decorative articles de­signed primarily to beautify, em­bellish, or adorn, such as, for example, drawings, paintings, carvings,statuary, wall plaques, murals, ceramic figurines, tapestries, scenic wallpaper, mosaics, stained glass, jewelry, artificial flowers, dolls, and toy animals.

2.

Useful articles. This category in­cludes all articles designed primar­ily to serve a utilitarian function, such as, for example, lamps and lighting fixtures, ceramic tiles, china and glassware, textile fabrics, lace, and ashtrays. (See topics 2.8.2.II and 2.8.3.I.d.)

2.8.2

Classification of works of art

I.

Nature of the material

a.

Single-page works. A single-page work of art is one whose content appears on one or both sides of a leaf, sheet, or their equivalent, A painting on canvas, board, or the like, may be considered a single-page work for purposes of classi­fication.

1.

Pictorial or graphic material. Class G is the appropriate category for the registration of all individ­ual pictorial or graphic works of art, in either published or unpub­lished form.

(a)

Class H. If the copyright claim is based only upon a pub­lished reproduction of an existing work of art and does not extend to the underlying work reproduced, Class H is the more appropriate category for registration. (See Part 2.9.)

(b)

Class I. If the pictorial or graphic material is designed for a scientific or technical use, such as a mechanical drawing, registration in Class I is more appropriate. (See Part 2.10.) However, if the-work is primarily aesthetic in its appeal or in the effect it produces, as for example, a drawing depicting the exterior of a building in per­spective with trees and shrubbery, registration in Class G may not be inappropriate.

(c)

Class K If the copyright claim is based only upon a published reproduction of a work which is not a work of fine art, regis­tration in Class K on Form K is appropriate. (See Part 2.12.)

b.

Folders and the like. A published pictoriaror-graphic folder, leaflet, or the like, which opens out so as to form a single sheet, is considered a single­ page work for purposes of classification. Thus, for example: twelve color repro­ductions of original paintings appearing on the twelve faces of an accordion-like folder published by the museum in which the paintings are exhibited.

1.

Single pictorial or graphic work of art on more than one page. A pub­lished single pictorial or graphic work of art whose content extends continuously across two or more pages may be considered a single­page work for purposes of classifi­cation, as for example: an original engraving of costumed figures in

procession reproduced across the three faces or folds of a triptych­ like greeting card.

c.

Multi-page works. A multi-page work of art is one whose content appears on two or more pages, sheets, or their equivalent.

1.

Published pictoral or graphic ma­terial. Class A is generally appro­priate for the registration of claims to copyright in published multi-page collections and compilations of pictorial or graphic works of art which have been published together as a unit and are identified by a common title, such as, for example: a portfolio of twenty original paint­ ingsselected by the artist from his own previously unpublished work and reproduced in color with a textual introduction. NOTE: A single regis­tration in Class-G may also be appro­priate in cases where the copyright claim is based essentially upon original artwork, such as, a set of

original watercolor prints published in a portfolio without any apprecia­ble amount of text.

(a)

Copyright notice insufficient for Class A. If a multi-page pictorial or graphic work of art has been published with a copy­right notice which fails to satisfy the notice requirements prescribed by the law for "books," registration in Class A will not be possible. Neverthe­less, if such a work bears a notice which satisfies the requirements of the law pre­scribed for material registrable in Classes F through K, regis­tration may be made on that basis under the rule of doubt. The following procedures apply:

(1)

Application Form A re­ceived. If an application has been submitted on Form A, registration in Class A will be rejected. In such a case, the Office may offer a single regis­tration in Class G on Form G on the basis of the pictorial or graphic mater­ial which the work contains, informing the applicant of the doubtful nature of the

registration.

(2)

Application Form G re­ceived. If an application has been submitted on Form G, registration in Class G may be considered on the basis of the picto­rial or graphic material which the work contains, In such case, the Office will inform the applicant of the doubtful nature of the registration,

(3)

No application received. If no application as been received, or if an opinion is requested, the Office will point out to the applicant why registration in Class A is not possible, In such a case, the Office may offer a single registra­tion in Class G on Form G on the basis of the picto­rial or graphic material which the work contains, in­ forming the applicant of the doubtful nature of the reg­istration.

(b)

seperate registration of indi­vidual work of art. The mere fact that two or more pictorial or graphic works of art have been published together in multi­ page form and are identified by a common title will not prevent the separate registration on Form G of individual pictorial or graphic works of art which bear a separate copyright notice.

2.

Unpublished pictorial or graphic material. A collection of unpub­lished pictorial or graphic works of art which are the subject of a single claim of copyright may be con­sidered for registration together as a unit in Class G on Form G, provided the pictorial or graphic material con­stitutes a single work of common authorship which can be identified as a whole by a single title.

d.

Contributions to "books" or "periodi­cals." An-orI9!nal pictorial or graphic work of art first published in the form of a contribution to a "book," newspaper, magazine, or other "periodical," may be considered for registration in Class G, provided the contribution contains its own separate copyright notice. However, if the contribution includes a substantial amount of text, or consists of many pictorial or graphic works of art, a single registration in either Class A or in Class B may be more appropriate, depending upon the form of publication.

1.

Class A. A single registration in Class A is appropriate for a work which contains text or other "book" material and was first published in the form of a contribution to a "book," subject to the requirements explained in Part 2.2: see also topic 2.8.2.I.c.1.

Example:

 

Included as a part of a pub­lished educational kit for elementary school children is a set of ten reproductions of original watercolor paintings never pre­viously published which depict the colonial architecture of New England. Each reproduction bears a copyright notice acceptable for 'book" material, together with three or four paragraphs of textual commentary on the parti­cular subject depicted. Practice:

The set of ten reproductions may be accepted for a single registration in Class A on Form A as a contribution to a "book," However, if the appli­cant insists on Class G, a single registration may be made on Form G.

2.

Class B. A single registration in Class B on Form BB is appropriate for a work which contains text or other "book" material and was first published in the form of a "contribution to a periodical," subject to the require­ments explained in Section 2.3.4. However, even if the contribution is wholly pictorial or graphic, regis­tration may be considered either on Form BB or in Class G on Form G, depending upon the applicant's choice.

Example:

 

An eight-page supplement to the Sunday edition of a newspaper is devoted entirely to an auto­biographical article by a local artist, several of whose original paintings are reproduced in color and published for the first time in the supplement. A copyright notice acceptable for a "con­tribution to a periodical" appears on the front page of the supplement. Practice: The sup­plement may be accepted for a single registration in Class B on Form BB as a contribution to a periodical," However, if the applicant insists on Class G, a single registration may be made on Form G, even though the extent of protection given to the text­ual material by such registration is doubtful.

e.

Work of art and text combined. The presence of captions and incidental text in a work of art will not prevent regis­tration in Class G. However, if the copyrightable contents of a work which is pictorial, graphic, or sculptural in form are entirely textual, registration in Class G is not authorized.

1.

Published works. If the textual mate­rial in a work predominates, or if the principal copyrightable element is textual, registration in Class A may be more appropriate (See Part 2.2), or, under certain circumstances, in Class B on Form BB (See topics 2.3.4.11 and 2.8.2.I.d.)

2.

Unpublished works. If the textual material is substantial and it appears that copyright is being claimed in both text and the work of art, the claim should not be regis­tered, until the scope of registration in Class G has been explained to the applicant. Generally, unpublished textual material (except captions and incidental text) should be separated from the copy deposited, wherever possible, and returned to the appli­cant. Unpublished textual material

is ordinarily not entitled to copy­ right registration. However, works prepared for oral delivery and dramas are exceptions. (See Parts 2.4 and 2.5.)

f.

Three-dimensional works. Class G is the appropriate category for the registration of claims to copyright in both published and unpublished three-dimensional works of art containing a substantial amount of original sculpture. Copyrightable sculp­ture includes statuary, abstract and representational carvings, bas-relief, and the like, which are commonly exe­cuted in hard material such as marble, bronze, glass, or wood. Sculptural authorship may also be embodied in works which are shaped, cast, or molded, such as, for example, a ceramic figurine, a plaster of Paris plaque in bas-relief, or a "plastic" toy formed from one of the commonly known synthetic chemical deriva­tives such as styrenes, vinyl compounds, or acrylic resins. Sculptural authorship may also be embodied in other materials such as, for example: a molded chocolate rabbit, a stuffed toy doll, or a floral design decorating a cake. However, a work may be three-dimensional in form and yet lack authorship of a sculptural nature. Thus, a work consisting of two-dimensional pictorial prints reproduced on separate pieces of cardboard which are interlocked at right angles with one another so as to produce an illusion of depth would not be considered sculpture in the copyright sense. (See also topic 2.8.3.1.)

g.

Utilitarian articles. Class G is appro­priate for the registration of a copy­rightable work of art, even though it is embodied in an article of utility. (See also topic 2.8.2.II.) Regardless of utility or commercial value, any work must contain sufficient copyrightable matter to support registration. (See topic 2.8.3.I.d.)

II.

Purpose, function, or use for which the material is designed. Generally, registra­tion may be made in Class G regardless of the purpose, function, or use for which a work of art is intended. Thus, for example, registrability would not be affected by the fact that (1) a painting is to be used as decora­tion on metal serving trays, or (2) a hand­ carved bracket is to be used as a wall shelf, (See also topic 2.8.2.I.g,)

a.

Drawings or plastic works of a scientific or technical character. Class I is the appropriate category for the registration of claims to copyright in published and unpublished pictorial, graphic, or sculptural material that is designed for a scientific or technical use, such as a mechanical drawing or an anatomical model, (See Part 2.10.)

b.

Commercial prints or labels. If a work of art has been published in connection with the sale or advertisement of an article or articles of merchandise, registration in Class K on Form KK is appropriate, For example, registration on Form KK would be appropriate for a painting reproduced and first published on the cover of a candy box, or a carved lion's head intended for promotional dis­play in connection with the sale or advertisement of imported beer. However, if the principal copyrightable element is sculptural, Class G may be the appropriate category for registration. (See topic 2,13.2.II.e.1.)

2.8.3

Registration requirements

I.

Copyrightable subject-matter. To be entitled to copyright protection, a work of art must contain an appreciable amount of original pictorial, graphic, or sculptural material. If a work of art consists entirely of uncopy­rightable elements, registration is not authorized. On the other hand, the mere presence of uncopyrightable elements in a work will not prevent registration on the basis of features susceptible of protection under the statute. Thus, an abstract design may be registrable even though it incorpor­ates uncopyrightable standard geometric forms, such as circles and squares. The copyright ability of a work of art does not depend upon artistic merit or aesthetic evaluation. For example, a child's drawing may exhibit a very low level of draftsman­ ship as judged by adult standards and yet be entitled to registration as a work of art. Similarly, it is not necessary that a work of art adhere to established aesthetic criteria. Hence, the form of a copyrightable work of art may be representational or abstract, naturalistic or stylized. It may express a traditional theme in a conventional manner, or it may rely for its effect upon fantastic or incongruous imagery and unnatural juxta­positions or combinations. Regardless of form, however, nothing is entitled to statu­tory protection as a work of art unless it can be considered the "writing of an author" within the meaning of the United States Constitution and the Statute.

a.

Pictorial or graphic material. Class G is appropriate for the registration of original pictorial or graphic material which embodies creative authorship in its pattern, form, shape, or configura­tion. Creative authorship may be expressed in the linear contours of a drawing, the brush marks or strokes characteristic of a painting, the assemblage of diverse fragments compris­ing a collage, the arrangement and juxtaposition of pieces of colored stone in a mosaic portrait, or the pattern of an abstract design executed in marquetry. Visual representation is always basic, regardless of the form in which a work is presented.

1.

Minimal standards. A certain minimal amount of original creative author­ship is essential for registration in Class G or in any other class. Copy­right ability depends upon the presence of creative expression in a work, and not upon aesthetic merit, commercial appeal, or symbolic value. Thus, reg­istration cannot be based upon the simplicity of standard ornamentation such as chevron stripes, the attract­iveness of a conventional fleur-de­ lys design, or the religious signifi­cance of a Greek cross. Similarly, it is not possible to copyright com­mon geometric figures or shapes such as the hexagon or the ellipse, a standard symbol such as an arrow or a five-pointed star. Likewise, mere coloration cannot support a copyright even though it may enhance the aesthetic appeal or commercial value of a work. For example, it is not possible to copyright a new version of a textile design merely because the colors of red and blue appearing in the design have been replaced by green and yellow, respectively. The same is true of a simple combination of two or three standard symbols such as a circle, a star, and a triangle, with minor linear or spatial variations.

Examples:

(a)

An unpublished design for textile fabric is submitted for registra­tion in Class G. The design con­sists of a standard unembellished character of Chinese calligraphy painted upon horizontally striated grass cloth. Practice: Registration is not authorized in this case. Like typography, calligraphy is not copyrightable as such, notwithstanding the effect achieved by calligraphic brush strokes across a striated surface.

(b)

An applicant for registration has developed a novelty item consisting of transparently clear plastic sheets bonded together around their periphery, and having a small amount of colored liquid petroleum in the air space between the laminated sheets. Any slight pressure upon the external surface results in the formation of undulating patterns and shapes, no two of which are ever identical. Practice: Since the specific outlines and contours of the patterns and shapes formed by the liquid petroleum do not owe their origin to a human agent, it is not possible to claim copyright in such patterns and shapes. The novelty of the idea embodied in the work and the effects achieved by the action of the petroleum under pressure likewise do not warrant registration.

b.

Class G is appro­priate for the registration of original sculpture which embodies creative authorship expressed in three-dimensional form by means of carving, casting, cutting, molding, shaping, or otherwise processing plastic or hard materials. Creative sculptural authorship may be expressed in the form, or the peripheral outline of whatever has been given a three­ dimensional form or shape.

1.

Minimal standards. The requisite minimal amount of original sculptural authorship necessary for registration in Class G does not depend upon the aesthetic merit, commercial appeal, or symbolic value of a work. Copy­rightability is based upon the creative expression of the author. that is, the manner or way in which he forms or fashions his material. Thus, registration cannot be based upon standard designs which lack originality, such as common architec­tural moldings, or the volute used to decorate the capitals of Ionic and Corinthian columns. Similarly, it is not possible to copyright common geometric figures or shapes in three­ dimensional form, such as the cone, cube, or sphere. The mere fact that a work of sculpture embodies uncopy­rightable elements, such as standard forms of ornamentation or embellish­ment, will not prevent registration. However, the creative expression capable of supporting copyright must consist of something more than the mere bringing together of two or three standard forms or shapes with minor linear or spatial variations. In no event can registration rest solely upon the fact that an idea, method, plan, or system has been successfully communicated in three­ dimensional form. In every case, it is the creative expression of the author which must be able to stand alone as an independent work apart from the general idea which informs it.

Examples:

(a)

Registration in Class G is re­quested for a design or model of a table lamp. Cast in plaster of Paris, the design features the head of a horse mounted on an iron horseshoe with toe and heel calks which supports the entire fixture. Electrical wiring is concerned within the plaster casting. Practice: If the head of the horse is original registration may be considered on that basis. However, the general idea of embellishing a lighting fixture with a work of art is not copyrightable. The same is true of the decorative idea of using a horseshoe as support for a lamp base, regardless of the pleasing effect thereby achieved.

(b)

A toy manufacturer conceives a novel idea for a toy consisting of multi-colored geometrical spheres, cubes, and cylinders of varying sizes. All of these parts or pieces are magnetized, and will adhere to each other when placed in close proximity. Thus, it is possible to con­struct an indefinite variety of shapes and figures by means of the magnetized parts or pieces. The manufacturer desires to pro­tect the three-dimensional aspects of the toy before publi­cation occurs. He applies to the Copyright Office for regis­tration of a design for an un­published sculptural work of art. His application Form G is accom­panied by one complete set of magnetized spheres, Cubes, and cylinders arranged in a plain box according to size and color, Practice: We will refuse a reg­istration in Class G based solely upon the unassembled toy, even though its component parts or pieces are potentially capable of being arranged in copyright­ able shapes and forms. The general idea of the toy is, of course, uncopyrightable, regard­less of its novelty or uniqueness.

(c)

A work described as a "mobile" consists of nine pieces of trans­lucent colored glass each of which is suspended by wire from an overhead rack designed to rotate about a pivot in a hori­zontal plane, The suspension wires vary in length and no two pieces of glass share the same shape or outline, Registration is sought in Class G on the basis of the overall effect pro­ duced by the play of light upon the suspended glass components of a work which the applicant describes as three-dimensional." No copyrightable authorship is claimed in the design of the individual pieces of glass. Practice: Registration based up­ on the cumulative effect produced by the component members of the mobile will be refused. If these members had contained copy­rightable authorship, registra­tion could have been considered on the basis of the two­ dimensional design features dis­played by the pieces of glass.

c.

New matter. If a work of art which has been previously published or previously registered in unpublished form contains new pictorial, graphic, or sculptural material, registration based upon such

material may be made in Class G, provided the "new matter" is original and copy­rightable in itself.

Examples:

 

(1)

A pencil drawing of an old man's head has been registered as an unpublished drawing. Another version of the same work is subsequently submitted for registration. The later version incorporates the earlier drawing with the addition of new pictorial matter showing the arms and torso. Practice: The later version is entitled to reg­istration on the basis of additional pictorial matter.

(2)

A statuette depicting a costumed female dancer was originally pub­lished in clear white porcelain. Later, a color version was produced with much hand-painted detail such as the facial features and decorative embroidery designs appearing on the figure's clothing. Practice: The painting embodied in the color version would support an additional registration. However, a mere change in coloration apart from any original artwork would not support registration, such as, a change in the color com­bination of the dancer's skirt from blue and gold to red and yellow.

d.

Utilitarian articles. The copyrightabil­ity of a work of art is not affected by the fact that the work may also embody utilitarian features, or that it may it­self be embodied in an article of utility. In all cases, registration must be based upon those copyrightable features such as artistic sculpture, carving, or pic­torial representation which can be identified separately and are capable of existing independently as a work of art, as for example: (1) a statuette used as a base for a table lamp, (2) an original painting reproduced on a porcelain dinner plate, (3) a sculptured figure used as a handle for a letter opener. (4) an artistic design reproduced on textile fabric, or (5) a stained glass window.

1.

Attractiveness of design. The mere fact that an article 0 utility is novel, unique, and attractively designed does not warrant its regis­tration as a "work of art." Thus, where design is dictated by utilitar­ian requirements rather than aesthetic considerations, it cannot provide a sufficient basis for registration. Examples of useful ,articles whose design is generally dictated by function rather than aesthetic con­siderations include the following: (1) automotive bodies and parts, (2) marine hulls, (3) stoves, toasters, vacuum cleaners and other household appliances, (4) bottles and food containers, (5) kitchen utensils, (6) articles of clothing, (7) machinery, and (8) tools and implements.

2.

Availability of protection under design patent law. A useful article may be accepted or registration as a work of art, even though it may also be entitled to protection under the design patent law. (See Title 35,

United States Code.) However, a copyright claim in the drawings or other pictorial material submitted in connection with a patent applica­tion is not entitled to registration after the patent has been issued. (See sections 202.10(b) and 202.10Cc) of the Regulations of the Copyright Office.)

II.

Formalities of registration

a.

Deposit of copy or copies

1.

Published textiles and lace. The requirement that both copies com­prising a deposit must be identical may present special problems in cases where the copyrighted work consists of a repetitive design reproduced on a continuous roll or sheet, as for example, a bolt of cloth or a "web" of lace. Generally, the copies submitted for deposit should represent the form in which publication first occurred. In the case of goods sold by the yard or fractions thereof, the copies need not exceed one yard in length. How­ ever, if the notice of copyright appears at regular intervals along the selvage, margin, or edge of the material, it is always desirable that each copy be of sufficient length to show two such notices in order to establish the frequency and regularity of their position on the work.

END OF PART 2.8
PAGES 2-300 THROUGH 2-420
RESERVED FOR FUTURE USE

Class J

Example

 

 

A pictorial filmstrip of eighty frames, thirty of which embody original text, has been pub­ lished with its own separate notice as a part of an audio­-visual kit. Practice: Request application on Form A, pointing out the possible limitations of registration in Class J. If the applicant nevertheless insists on Class J, register the claim on Form J.

2.

Class B. A "contribution to a periodical" may be an article, story, pictorial illustration, or other work first published in a periodical; a "periodical" is a magazine, news­paper, or similar work published at regular intervals of less than a year under the same general title. If such a contribution includes a substantial amount of text, or con­sists of many photographs, a single registration in Class B on Form BB is appropriate, subject to the requirements explained in Section 2.3.4.

Example:

 

 

A set of six photographic film slides illustrating undersea life has been published with a separate notice on each slide as part of the May 1970 issue of a monthly scientific journal on marine biology. Practice: Register the claim either on Form BS or Form J. However, if the contribution had included a substantial amount of text, we should request application on Form BS, pointing out the possible limitations of regis­tration in Class J. If the applicant nevertheless insists

on Class J, register the claim on Form J.

2.11.3

Registration reguirements

I.

Copyrightable subject-matter. To be en­titled to copyright protection as a "photo­graph," a work must contain an appreciable amount of original photographic authorship. Registration in Class J is not authorized if creative authorship of a copyrightable nature is lacking, as, for example, in a case where the photograph results solely from the operation of mechanical or photo­ mechancial processes. (See topic 2.11.3.I.d.)

NOTE: The copyrightabi1ity of a photograph depends upon the variety and extent of elements involved in its composition and not upon the nature of the thing depicted or the subject photographed.

a.

Photographic composition. Original photographic composition capable of sup­porting registration in Class J may involve a variety of elements, such as, time and light exposure, camera angle, arrangement or disposition of persons, scenery, or other subjects depicted in the photograph. The copyright ability of photographic composition does not depend upon artistic merit or aesthetic evaluation.

1.

Minimal standards. Although the copyrightability of photographic material is not determined by qualitative or aesthetic standards, a certain mini­mal amount of original creative authorship is essential for registration in Class J or in any other class. The mechanical, photomechan­ical, or other processes involved in the production of a photograph, are not themselves capable of supporting registration in Class J.

b.

The subject of the photograph. Regis­tration of claims to copyright in published or unpublished photographs does not depend upon the nature of the subject photographed, nor does such registration extend to the subject depicted, regard­less of their nature.

1.

Kinds of Subjects. In general, any­thing capable of being reduced to visual perception by photographic means could become the subject of a copyrightable photograph. Examples of commonly photographed subjects include, but are not necessarily limited to, the following categories:

(a)

An uncopyrightable subject, such as a typewriter, diesel engine, or sailing vessel. (See also topic 2.11.3.I.b.4.)

(b)

A copyrightable subject, such as an oil painting or a statue. (See also topics 2.11.3.I.b.2 and 211.3.I.b.4.)

(c)

A living subject, such as a human person, an animal, or flowers.

(d)

A natural subject, such as a seascape, a sunset, or a cluster of shade trees.

(e)

An artificial subject, such as the steel framework of an office building, or a violin.

2.

Textual matter. A photographic reproduction of textual matter is generally not registrable as a "photograph." However, the mere fact that the principal subject of a "photograph" is textual will not prevent registration in Class J, provided there is sufficient original photo­graphic authorship. For example, a copyrightable photograph could depict a book of poems opened in the candlelight showing the text of Samuel Taylor Coleridge's poem "Kubla Khan."

3.

Duplication of subjects. The same subject may be depicted in two or more copyrightable photographs. For example, the dome of the Capitol building in Washington could be the subject of many copyrightable photographs.

4.

The subject as basis of claim. A claim to copyright in Class J based upon the premise that the copyright will protect the subject depicted in a photograph will ordinarily be rejected. However, there are certain exceptions:

(a)

Published works. If the photograph itself is copyrightable as such, and has been published with the required statutory notice, registration may be made on that basis, but the Office will call the applicant's atten­tion to the scope of registration in Class J.

Example:

 

A copyrightable photograph, published with notice, depicts a bronze statue which the author of the photograph wishes to protect by regis­tration in Class J. Practice: Write to the appli­cant, advising him of the scope of registration of the "photograph," and pointing out the registration require­ments for a sculptural work of art" in Class G. (See Part 2.8.) However, the applicant desires registra­tion in Class J, knowing thatthe claim is limited to the photograph, registration mayaccordingly then be made on Form J.

(b).

Unpublished works. If the photo­graph itself is copyrightable as such. registration may be made on that basis. However, if there is reason to believe that the appli­cant desires copyright protection for the subject depicted in the photograph, registration should not be made until the scope of protection afforded by registration in Class J has been pointed out to the applicant.

Example:

 

An unpublished photograph de­picts an electronic recording device which has been the sub­ject of a unsuccessful appli­cation for design patent. Practice: Write to the appli­cant, pointing out that regis­tration in Class J will not protect the recording device as such. Registration may be made thereafter, if the appli­cant so desires.

(c)

Old photographs. The mere fact that a photograph is old or depicts a subject no longer in existence will not prevent registration. However, if the author of an old photograph is deceased or unknown, the Office may request an explana­tion of the basis of the copyright before registering the claim.

1.

Authorship Copyright depends upon authorship. Unless a person is the author of a photo­ graph, or holds rights which derive from the author, he is not entitled to claim copyright into A sharp distinction must be drawn between title to, or possession of, the physical copy of a photograph, and the copyright in the work.

(d)

Mechanical reproduction. Although the production of a photograph necessarily involves a mechanical process, a photograph produced solely by the operation of a mechan­ical process lacks the requisite element of creative composition and, consequently, is not subject to registration in Class J. The photo­graphic reproduction of pictorial, graphic, or textual material for the purpose of providing regular copies of such material, rather than for the sake of producing "photographs" as such, indicates that registration in Class J is not authorized, as for example, in the case of a photostatic reproduction of a real property deed.

(e)

New matter, New photographic material appearing in revised versions of photo­graphs may support registration in Class J, provided the new matter is original and copyrightable in itself.

Example:

 

A filmstrip consisting of twenty-four frames, seven of which appeared in an earlier published version.

II.

Publication with notice. Publication is not a prerequisite for registration in Class J. Thus, a photograph may be considered for registration in either published or unpub­lished form.

a.

Publication. A photograph is generally not considered published in the copy­right sense until copies have actually been placed on sale, sold, or publiclydistributed.. However, the unrestricted public exhibition of a photograph may also constitute a publication in the copyright sense. (See Section 3.1.1 and topic 3.1.3.11; see also Part 4.1.)

b.

Notice of copgyright. The published copies of a photograph must contain a copyright notice in the form and position prescribed by law.

1.

Form. The law requires that the copy­right notice include the word "Copyright, It the abbreviation "Copr.," or the symbol ©, accompanied by either: (1) the name of the copyright owner, or (2) the initials, monogram, mark, or symbol of the copyright owner, provided his name appears on some accessible part of the work. (See also topic 4.2.1.11.)

2.

Position. A notice on any acces­sible part of a single-page work is acceptable for purposes of registra­tion in Class 3. A notice located on the margin or permanent mounting of a work (such as a base, pedestal, selvage, or frame) is also accept­able, provided the notice is visible and not concealed. (See also Section 4.3.6.)

3.

Year date. The year date of publi­cation may be included in the notice on a "photograph' but, ordinarily, it is not required. However, for the U.C.C. requirements in this re­gard, see topic 2.11.3.11.b.4 and Section 4.2.4.

4.

U.C.C. notice. The notice prescribed in the Universal Copyright Convention consists of the symbol ©, accompanied by the name of the copyright owner and the year date when copyright was first secured, either by publication, or, in the case of an unpublished work, by registration in the Copy­right Office. (See also topic 4.2.4.III.) The notice must be

located on the work in such manner and position as to give reasonable notice of the copyright claim.

(a)

Defective U.C.C. notice acceptable under U.S. law. If the registrabi1ity of a work depends upon the availability of the U.C.C. exemptions granted under the copyright law [17 U.S.C. sec. 9(c)], the copies as first published should bear the above-mentioned U.C.C. notice. However, in such a case, where the notice satisfies the require­ments of Section 19 of the statute, but not the U.C.C. requirements of Section 9(c), registration will be made under the rule of doubt, and a cau­tionary letter will be sent. (See also Part 8.2.)

c.

Exception to the general rule. A "photograph" by a foreign author which was first published outside the United States before June 18, 1959 may be considered for registration, even if the copyright notice was omitted or defective. However, a cautionary letter will be sent in every such case. (See topic 4.1.3.II.b; see also topics 8.2.1.I.a and 8.2.1.III.a.)

d.

Unpublished photographic material. As long as a "photograph" remains In unpub­lished form, no copyright notice is required in order to secure statutory protection. NOTE: If a "photograph" is first registered in unpublished form and later published with notice of copyright, a second registration should be made. (See Chapter 10; see also topic 5.3.4.III.)

III.

Formalities of registration. Generally, registration of a claim to copyright in a "photograph" cannot be made until the Copyright Office has received a completed application form, together with the re­quired copy or copies, and the prescribed registration fee. Under certain circum­stances, a catalog card may be substituted in lieu of the registration fee for pub­lished works of foreign origin. (See topic 2.11.3.III.c.2.)

a.

Application form prescribed. Applica­tion for registration of a claim to copyright in a "photograph" should be submitted on Form J, which is appropriate for published or unpublished works of both domestic and foreign origin.

(Regarding the distinction between works of domestic and foreign origin, see topic 2.11.2.I.)

b.

Deposit of copy or copies

1.

Unpublished works. Registration of an unpublished "photograph" of either domestic or foreign origin requires the deposit of one complete copy of the work. (See topic 5.2.l.II.c.)

2.

Published domestic works. Registra­tion of a published "photograph" not of foreign origin requires the deposit of two complete copies of the "best edition" of the work as first published. (See topic 5.2.2.I.a.)

3.

Published foreign works. Registra­tion of a published "photograph" of foreign origin may be made on the basis of the deposit of either one or two copies. (See topic 5.2.2.I.b.)

(a)

Option A. One complete copy of the "best edition" of the photographic work as first pub­lished (together with the required registration fee) will suffice for purposes of deposit under Option A. In all other respects, the deposit requirements are the same as those specified for published domes­tic works in topic 2.11.3.III.b.2.

(b)

Option B. Two complete copies of the "best edition" of the photographic work as first pub­lished (together with the required catalog card) will suffice for purposes of deposit under Option B, provided the

copies (together with the re­quired application and catalog card) are received in the Copyright Office within six months of the date of first publication outside the United States. Option B is not avail­able if either the author, co­-author, or copyright proprietor of the work is a U.S. citizen, domiciliary, or resident on the date the application is filed. In all other respects the deposit requirements are the same as those specified for published domestic works in topic 2.11.3.III.b.3

4.

Best edition. In the case of a pub­lished "photograph," the copy or copies submitted for deposit should represent the form in which the work was first made available to the pub­lic without restriction. Where two or more editions or issues of dif­ferent quality are pulished simultaneously, deposit of a copy or copies of the "best edition" will be required. Thus, if a "photo­graph" is published in both black and white and color versions, the color version would ordinarily be considered the "best edition." If two copies are required for deposit, both copies should be duplicates. For further explanation of the re­quirements relating to "best edition," see Part 5.3,

c.

Fee prescribed

1.

Generally, The fee for each regis­tration is six dollars ($6.00).

2.

Waiver-of-fee option. Published "photographs" of foreign origin may be entitled to registration without payment of the customary fee, pro­vided all of the following elements are received in the Copyright Office

within six months after the date of first publication outside the United States: (1) a completed application Form J, (2) two copies of the work as first published, and (3) a com­pleted catalog card. (See also topic 2.11.3.III.b.3(b).) NOTE: Payment of the registration-fee is always required if:

(a)

The "photograph" is in unpub­lished form, or

(b)

The author was a U.S. citizen or domiciliary on the date of first publication, or if the author of the work, a co-author, or the proprietor of the copy­ right in the work is a U.S. citizen, domiciliary, or resi­dent on the date the applica­tion is filed.

d.

Time limitation

1.

Unpublished works. There is no obligation to register a claim to copyright in an unpublished work. As long as a "photograph" remains in unpublished form, it is subject to protection under the common law against unauthorized use before pub­lication without any action being required in the Copyright Office. However, if a work registered in unpublished form is later published with notice of copyright, a second registration should be made "promptly" thereafter. (See topic 2.11.3.1II.d.2.)

2.

Published works Application for registration should be made "promptly" after publication with notice, but in no event after the expiration of the original twenty­ eight year term of statutory pro­tection. The special six-month limitation prescribed for the registration of foreign works under Option B is explained in topics 2,11.3,III.b.3(b) and 2.11,3.III.c.2.

IV.

Manufacturing requirement. A "photograph" may be considered for registration in Class J regardless of the place where the work was produced or manufactured. C(see topic 6.4.1.II a.)

END OF PART 2.11
PAGES 2-448 THROUGH 2-70
RESERVED FOR FUTURE USE

Classes L and M

Chapter 2

COPYRIGHTABLE MATTER

Part 2.14 MOTION PICTURES (CLASSES L-M)

Outline of Topics

2.14.1

WHAT IS A MOTION PICTURE?

I.

In general

II.

Classification

a.

Two classes

b.

Single application form

c.

Video tapes

d

Types of material not eligible

III.

Sound tracks

2.14.2

STATUTORY REQUIREMENT'S FOR COPYRIGHT IN MOTION PICTURES

I.

Publication

II.

Notice

a.

Form

b.

Position

III.

Manufacture

2.14.3

PROCEDURE FOR REGISTRATIONS

I.

Copies

a.

Published motion pictures

b.

Unpublished motion pictures

II.

Fees

III.

Information contained in app1ieation

a.

Authorship

b.

New matter

IV.

Unit registrations

CHAPTER 2. COPYRIGHTABLE MATTER

Part 2.14 MOTION PICTURES (CLASSES L-M)

2.14.1

What is a Motion Picture?

I.

In general. "A motion picture is a series of pictures presenting to the eye the illusion of motion, which pictures are projected on a screen or transmitted by means of television or otherwise, and have as their origin a series of connected pictures on film or other recording media."

II.

Classification.

a.

The copyright law provides for registration of motion pictures in two classes: (17 U.S.C. §5)

1.

Photoplays (Class L). Photoplays are motion pictures that are dramatic in character and tell a connected story.

Examples:

(1)

DAVID COPPERFIELD, a feature film based on the Dickens novel

(2)

THE WHITE ROSE OF MEMPHIS, a filmed original te1eplay

(3)

THE STRAWBERRY ISLAND ADVENTURE, an animated cartoon

(4)

LARRY LAGER AND PHIL PILSNER GO CAMPING, a filmed T.V. cartoon commercial

2.

Motion Pictures other than Photoplays (Class M). This clss includes motion pictures which do not tell a connected story by dramatic means.

Examples:

(1)

THE NEWS OF THE WORLD IN REVIEW, a newsreel

(2)

INTO THE SETTING SUN, a travelog

(3)

GASOLINE ENGINES FOR WOMEN, a filmed educational T.V. program

(4)

YOUR SIDEWALK REPORTER, a filmed T.V. program

b.

For purposes of registration, all motion pictures are entered on a single application, Form L-M. The application must indicate whether the film is a photoplay or other than a photoplay.

c.

If otherwise qualified as a motion picture, a work reproduced on video tape may be considered for registration in Class L or Class M.

d.

The following types of material are not eligible for registration in Class L or Class M:

1.

Motion picture scripts. Registration for such works may be considered in Classes C or D.

2.

Motion picture scenarios, synopses, outlines, etc." are regarded as "books," and may not be registered in unpublished form.

3.

Filmstrips. Such works may be considered tor registration as "photographs" in Class J.

III.

Sound tracks.

a

The Copyright Office takes no position as to whether copyright in a motion picture covers the integrated sound track portions of the work.

b.

Registration is not made for a sound track alone, or for a sound track as the only new

matter in a previously published or registered motion picture.

Examples:

(1)

An old silent film with a new sound track.

(2)

A previously published foreign film with a dubbed sound track in English.

2.14.2

Statutory Requirements for Copyright in Motion Pictures.

I.

Publication.

a.

Claims are registered in both published and unpublished motion pictures.

b.

Publication of a motion picture is generally deemed to have taken place when prints of the

film are placed on sale, sold, distributed to the public, or distributed to film exchanges, film distributors, exhibitors, or broadcasters under a lease or similar arrangement.

Examples of publication:

(1)

Prints of a "public service" film are sent out free of charge to various television stations for exhibition.

(2)

Prints of a theatrical film are sent out to distributors for rental to exhibitors.

c.

Mere public exhibition or performance is not generally regarded as publication of a motion picture.

Examples:

(1)

Preview" of a film to test audience reaction.

(2)

Performance of a film on television.

II.

Notice.

a.

Form.

1.

The notice on a published motion picture should generally consist of "the word 'Copyright,' the abbreviation 'Cor.' or the symbol CD, accompanied bv the name of the copyright proprietor, and . . .the year in which the copyright was secured by publication."

2.

A notice lacking the year date will be con­sidered for registration either in Class L or Class M, but we caution the applicant that such a notice may not be adequate, expecially in Class L.

b.

Position.

1.

The law does not specify where a notice should be placed on a motion picture film, but the Office will reco~nend that the notice appear on or near the title frame.

2.

Registration will be made if the notice appears either in the opening frames con­taining the title and credits or at the end of the film.

2.

Registration will be refused if the notice appears only on one of the reels in the middle of the film.

4.

The notice should be legible when the film is screened or exhibited.

(a)

A notice scratched on the leader of a film will be questioned. Registra­tion will be made upon advice that a legible notice appeared on all copies of the film.

(b)

A notice on the reel or container will not be accepted.

III.

Manufacture. The manufacturing requirements of Sec. 16 (17 U.S.C.) do not apply to motion pictures.

2.14.3

Procedure for Registration.

I.

Copies.

a.

Published motion pictures.

1.

The law requires deposit of two complete copies of the best edition of the film as published; or, if the "author"of the film is a citizen or subject of a foreign state or nation, one complete copy of the best edition is required. (17 U.S.C. §§ 13, 215)

2.

The copies must be complete, identical, and of the best edition published.

Example:

A cow of an 8-reel film in which reel 6 is missing will not be accepted.

3.

In addition to the actual prints of the film, the Copyright Office requires the deposit of a description of a published motion picture. This may take the form of a shooting script, a synopsis, a press book, a continuity, or other identifying matter.

4.

A contract for the return of deposited copies may be made between the copyright claimant and the Librarian of Congress, under terms and conditions prescribed by the Librarian.

(a)

In the absence of such a contract, copies are either held pending the execution of an agreement or are trans­ferred to the Libretry's Exchange and Gift Division.

(b)

When such a contract exists, the copies may be returned to the applicant immediately following examination.

(c)

Such contracts are not encouraged in the case of foreign claimants, but requests for such contracts should be forwarded to the Library's Exchange and Gift Division.

b.

Unpublished motion pictures.

1.

Photoplays. Section 12 (17 U.S.C.) requires the deposit " ...of a title and description, with one print taken from each scene or act, if the work be a motion-picture photoplay."

2.

Motion pictures other than photoplays. Section 12 (17 U.S.C) requires the deposit "...of a title and description, with not less than two prints taken from different section of a complete motion picture, if the work be a motion picture other than a photoplay."

a.

Published motion pictures.

1.

The registration fee for all motion pictures is $6.00.

2.

If the motion picture qualifies as a work of foreign origin, it may be registered without fee if two copies, a catalog card, and application are received within six months of first publication.

b.

Unpublished motion pictures. The registration fee for all unpublished motion pictures is $6.00.

III.

Information contained in application.

a.

Authorship

1.

The law requires a statement of the author's citizenship and the application form calls

for his name.

2.

The law does not make the identity of the "author" of a motion picture clear.

(1)

Ordinarily a motion picture embodies a large number of contributions, including the of the author of the story, author of the screenplay, director, editor, cameraman, individual producer, etc. These persons ordinarily are not regarded as the "author" of the film in the copy"right sense.

(1)

Since most films are largely "made for hire" the employer is usually regarded as the "author." In most cases the employer is the producing company, although there may be cases where a releasing company, a bank or other organization or an individual is regarded as the author.

3)

The statement of authorship given on the application will ordinarily not be questioned unless there is a clear conflict with the facts appearing in the descriptive matter.

b.

New matter. To be registrable as a "new version," a motion picture should contain new visual elements or substantial revisions.

Examples of copyrightable new matter:

(1)

English subtitles on a previously published foreign film.

(2)

An explanatory prologue added to an Italian film version of an opera.

(3)

An edited version of War and Peace, running 100 minutes rather than 200.

IV.

Unit registrations. Related Works, such as consecutive installments of a series, must be registered separately under individual titles unless they were actually first published as a unit.

End of Part 2.14

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