[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Rules and Regulations]
[Pages 37605-37608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15235]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2012-6]


Registration of Claims to Copyright

AGENCY: Copyright Office, Library of Congress.

ACTION: Statement of Policy; Registration of Compilations.

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SUMMARY: The Copyright Office issues this statement of policy to 
clarify the practices relating to the examination of claims in 
compilations, and particularly in claims of copyrightable authorship in 
selection and arrangement of exercises or of other uncopyrightable 
matter. The statement also clarifies the Office's policies with respect 
to registration of choreographic works.

DATES: Effective June 22, 2012.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400. 
Telephone (202) 707-8380; fax (202) 707-8366.

SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement 
of policy to clarify its examination practices with respect to claims 
in ``compilation authorship,'' or the selection, coordination, or 
arrangement of material that is otherwise separately uncopyrightable. 
The Office has long accepted claims of registration based on the 
selection, coordination, or arrangement of uncopyrightable elements, 
because the Copyright Act specifically states that copyrightable 
authorship includes compilations. 17 U.S.C. 103.
    The term ``compilation'' is defined in the Copyright Act:

    A ``compilation'' is a work formed by the collection and 
assembling of preexisting materials or of data that are selected, 
coordinated, or arranged in such a way that the resulting work as a 
whole constitutes an original work of authorship.

17 U.S.C. 101 (``compilation''). This definition's inclusion of the 
terms ``preexisting material'' or ``data'' suggest that individually 
uncopyrightable elements may be compiled into a copyrightable whole. 
The legislative history of the 1976 Act supports this interpretation, 
stating that a compilation ``results from a process of selecting, 
bringing together, organizing, and arranging previously existing 
material of all kinds, regardless of whether the individual items in 
the material have been or ever could have been subject to copyright.'' 
H.R. Rep. 94-1476, at 57 (emphasis added).
    Viewed in a vacuum, it might appear that any organization of 
preexisting material may be copyrightable. However, the Copyright Act, 
the legislative history and the Supreme Court's decision in Feist 
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S. 
1991), lead to a different conclusion.
    In Feist, interpreting the congressional language in the section 
101 definition of ``compilation,'' the Supreme Court found protectable 
compilations to be limited to ``a work formed by the collection and 
assembling of preexisting material or data that are selected, 
coordinated, or arranged in such a way that the resulting work as a 
whole constitutes an original work of authorship.'' Feist at 356, 
quoting 17 U.S.C. 101 (``compilation'') (emphasis by the Court). The 
Court stated:

    The purpose of the statutory definition is to emphasize that 
collections of facts are not copyrightable per se. It conveys this 
message through its tripartite structure, as emphasized above by the 
italics. The statute identifies three distinct elements and requires 
each to be met for a work to qualify as a copyrightable compilation: 
(1) The collection and assembly of pre-existing material, facts, or 
data; (2) the selection, coordination, or arrangement of those 
materials; and (3) the creation, by virtue of the particular 
selection, coordination, or arrangement, of an ``original'' work of 
authorship * * *.
    Not every selection, coordination, or arrangement will pass 
muster. This is plain from the statute. * * * [W]e conclude that the 
statute envisions that there will be some fact-based works in which 
the selection, coordination, and arrangement are not sufficiently 
original to trigger copyright protection.

Feist, 499 U.S. at 357-358 (U.S. 1991)
    The Court's decision in Feist clarified that some selections, 
coordinations, or arrangements will not qualify as works of authorship 
under the statutory definition of ``compilation'' in section 101. 
However, a question that was not present in the facts of Feist and 
therefore not considered by the Court, is whether the selection, 
coordination, or arrangement of preexisting materials must relate to 
the section 102 categories of copyrightable subject matter.
    In Feist, Rural Telephone's alphabetical directory was found 
deficient due to a lack of originality, i.e.,

[[Page 37606]]

of sufficient creativity. Had the items contained in the directory 
(names, addresses and telephone numbers) been selected, coordinated, or 
arranged in a sufficiently original manner, there is no question that 
the resulting compilation would have fit comfortably within the 
category of literary works--the first category of copyrightable 
authorship recognized by Congress in section 102. But what if an 
original selection, coordination, or arrangement of preexisting 
material did not fall within a category of section 102 authorship? For 
instance, is a selection and arrangement of a series of physical 
movements copyrightable, if the resulting work as a whole does not fit 
within the categories of pantomime and choreographic works or dramatic 
works, or any other category?
    Although the Feist decision did not address this question, the 
Copyright Office concludes that the statute and relevant legislative 
history require that to be registrable, a compilation must fall within 
one or more of the categories of authorship listed in section 102. In 
other words, if a selection and arrangement of elements does not result 
in a compilation that is subject matter within one of the categories 
identified in section 102(a), the Copyright Office will refuse 
registration.
    The Office arrives at this conclusion in accordance with the 
instruction of the Supreme Court in Feist: ``the established principle 
that a court should give effect, if possible, to every clause and word 
of a statute,'' citing Moskal v. United States, 498 U.S. 103, 109-110 
(1990). Applying this principle, the Office finds that in addition to 
the statutory definition of ``compilation'' in section 101, Congress 
also provided clarification about the copyrightable authorship in 
compilations in section 103(a) of the Copyright Act:

    The subject matter of copyright as specified by section 102 
includes compilations and derivative works, but protection for a 
work employing preexisting material in which copyright subsists does 
not extend to any part of the work in which such material has been 
used unlawfully.

17 U.S.C. 103(a). (emphasis added).
    Section 103 makes it clear that compilation authorship is a subset 
of the section 102(a) categories, not a separate and distinct category. 
Section 103 and the definition of ``compilation'' in Section 101 also 
mark a departure from the treatment of compilations under the 1909 Act, 
which listed composite works and compilations as falling within the 
class of ``books.'' The 1976 Act significantly broadened the scope of 
compilation authorship to include certain selection, coordination, or 
arrangement that results in a work of authorship. But that expansion 
also makes it clear that not every selection, coordination, or 
arrangement of material is copyrightable. Only selection, coordination, 
or arrangement that falls within section 102 authorship is 
copyrightable, i.e., is selected, coordinated, or arranged in such a 
way that the resulting work as a whole constitutes an original work of 
authorship. Moreover, section 103 provides that compilations fall 
within ``[t]he subject matter of copyright as specified by section 
102,'' and the legislative history of the 1976 Act confirms what this 
means: ``Section 103 complements section 102: A compilation or 
derivative work is copyrightable if it represents an `original work of 
authorship' and falls within one or more of the categories listed in 
section 102.'' H.R. Rep. 94-1476 at 57 (1976) (emphasis added).
    This requirement indicates that compilation authorship is limited 
not only by the tripartite structure of the statutory definition of 
``compilation,'' but that in addition, a creative selection, 
coordination, or arrangement must also result in one or more 
congressionally recognized categories of authorship.
    Although the statute together with the legislative history warrant 
this conclusion, it is far from obvious when the statutory definition 
of ``compilation'' is read in isolation. Moreover, other portions of 
the legislative history have obscured this interpretation.
    The legislative history states that the term ``works of 
authorship'' is said to ``include'' the seven categories of authorship 
listed in section 102 (now eight with the addition of ``architectural 
works''), but that the listing is ``illustrative and not limitative.'' 
H.R. Rep 94-1476, at 53. If these categories of authorship are merely 
illustrative, may courts or the Copyright Office recognize new 
categories of copyrightable authorship? Given that Congress chose to 
include some categories of authorship in the statute, but not other 
categories, did Congress intend to authorize the courts or the 
Copyright Office to recognize authorship that Congress did not 
expressly include in the statute? For instance, the decision to include 
``pantomimes and choreographic works'' as a new category of authorship 
that did not exist under the 1909 Act was the subject of much 
deliberation, including a commissioned study and hearings. Copyright 
Office Study for Congress. Study No. 28, ``Copyright in Choreographic 
Works,'' by Borge Varmer; Copyright Law Revision, Part 2, Discussion 
and Comments on Report of the Register of Copyrights on the General 
Revision of the U.S. Copyright Law, House Comm. on the Judiciary 
(February 1963) at 8-9. Similarly, the decision not to include typeface 
as copyrightable authorship was a deliberate decision. H.R. Rep 94-
1476, at 55. Could Congress have intended the courts or the Office to 
second-guess such decisions, or accept forms of authorship never 
considered by Congress?
    Again, the answer lies in the legislative history. First, the 
legislative history states that ``In using the phrase `original works 
of authorship,' rather than `all the writings of an author,' the 
committee's purpose was to avoid exhausting the constitutional power of 
Congress to legislate in this field, and to eliminate the uncertainties 
arising from the latter phrase.'' H.R. Rep 94-1476, at 51. Thus, one 
goal of the illustrative nature of the categories was to prevent 
foreclosing the congressional creation of new categories:

    The history of copyright law has been one of gradual expansion 
in the types of works accorded protection, and the subject matter 
affected by this expansion has fallen into one of two categories. In 
the first, scientific discoveries and technological developments 
have made possible new forms of creative expression that never 
existed before. In some of these cases the new expressive forms--
electronic music, filmstrips, and computer programs, for example--
could be regarded as an extension of copyrightable subject matter 
Congress had already intended to protect, and were thus considered 
copyrightable from the outset without the need of new legislation. 
In other cases, such as photographs, sound recordings, and motion 
pictures, statutory enactment was deemed necessary to give them full 
recognition as copyrightable works.
    Authors are continually finding new ways of expressing 
themselves, but it is impossible to foresee the forms that these new 
expressive methods will take. The bill does not intend either to 
freeze the scope of copyrightable technology or to allow unlimited 
expansion into areas completely outside the present congressional 
intent. Section 102 implies neither that that subject matter is 
unlimited nor that new forms of expression within that general area 
of subject matter would necessarily be unprotected.
    The historic expansion of copyright has also applied to forms of 
expression which, although in existence for generations or 
centuries, have only gradually come to be recognized as creative and 
worthy of protection. The first copyright statute in this country, 
enacted in 1790, designated only ``maps, charts, and books''; major 
forms of expression such as music, drama, and works of art achieved 
specific statutory recognition only in later enactments. Although 
the coverage of the present statute is very broad, and would be 
broadened further by explicit recognition of all forms of 
choreography,

[[Page 37607]]

there are unquestionably other areas of existing subject matter that 
this bill does not propose to protect but that future Congresses may 
want to.

Id. (emphasis added.)
    This passage suggests that Congress intended the statute to be 
flexible as to the scope of established categories, but also that 
Congress also intended to retain control of the designation of entirely 
new categories of authorship. The legislative history goes on to state 
that the illustrative nature of the section 102 categories of 
authorship was intended to provide ``sufficient flexibility to free the 
courts from rigid or outmoded concepts of the scope of particular 
categories.'' Id. at 53 (emphasis added). The flexibility granted to 
the courts is limited to the scope of the categories designated by 
Congress in section 102(a). Congress did not delegate authority to the 
courts to create new categories of authorship. Congress reserved this 
option to itself.
    If the federal courts do not have authority to establish new 
categories of subject matter, it necessarily follows that the Copyright 
Office also has no such authority in the absence of any clear 
delegation of authority to the Register of Copyrights.
    Interpreting the Copyright Act as a whole, the Copyright Office 
issues this policy statement to announce that unless a compilation of 
materials results a work of authorship that falls within one or more of 
the eight categories of authorship listed in section 102(a) of title 
17, the Office will refuse registration in such a claim.
    Thus, the Office will not register a work in which the claim is in 
a ``compilation of ideas,'' or a ``selection and arrangement of 
handtools'' or a ``compilation of rocks.'' Neither ideas, handtools, 
nor rocks may be protected by copyright (although an expression of an 
idea, a drawing of a handtool or a photograph of rock may be 
copyrightable).
    On the other hand, the Office would register a claim in an original 
compilation of the names of the author's 50 favorite restaurants. While 
neither a restaurant nor the name of a restaurant may be protected by 
copyright, a list of 50 restaurant names may constitute a literary 
work--a category of work specified in section 102(a)--based on the 
author's original selection and/or arrangement of the author's fifty 
favorite restaurants.
    An example that has occupied the attention of the Copyright Office 
for quite some time involves the copyrightability of the selection and 
arrangement of preexisting exercises, such as yoga poses. Interpreting 
the statutory definition of ``compilation'' in isolation could lead to 
the conclusion that a sufficiently creative selection, coordination or 
arrangement of public domain yoga poses is copyrightable as a 
compilation of such poses or exercises. However, under the policy 
stated herein, a claim in a compilation of exercises or the selection 
and arrangement of yoga poses will be refused registration. Exercise is 
not a category of authorship in section 102 and thus a compilation of 
exercises would not be copyrightable subject matter. The Copyright 
Office would entertain a claim in the selection, coordination or 
arrangement of, for instance, photographs or drawings of exercises, but 
such compilation authorship would not extend to the selection, 
coordination or arrangement of the exercises themselves that are 
depicted in the photographs or drawings. Rather such a claim would be 
limited to selection, coordination, or arrangement of the photographs 
or drawings that fall within the congressionally-recognized category of 
authorship of pictorial, graphic and sculptural works.
    As another example, Congress has stated that the subject matter of 
choreography does not include ``social dance steps and simple 
routines.'' H.R. Rep. 94-1476 at 54 (1976). A compilation of simple 
routines, social dances, or even exercises would not be registrable 
unless it results in a category of copyrightable authorship. A mere 
compilation of physical movements does not rise to the level of 
choreographic authorship unless it contains sufficient attributes of a 
work of choreography. And although a choreographic work, such as a 
ballet or abstract modern dance, may incorporate simple routines, 
social dances, or even exercise routines as elements of the overall 
work, the mere selection and arrangement of physical movements does not 
in itself support a claim of choreographic authorship.
    A claim in a choreographic work must contain at least a minimum 
amount of original choreographic authorship. Choreographic authorship 
is considered, for copyright purposes, to be the composition and 
arrangement of a related series of dance movements and patterns 
organized into an integrated, coherent, and expressive whole.
    Simple dance routines do not represent enough original 
choreographic authorship to be copyrightable. Id. Moreover, the 
selection, coordination or arrangement of dance steps does not 
transform a compilation of dance steps into a choreographic work unless 
the resulting work amounts to an integrated and coherent compositional 
whole. The Copyright Office takes the position that a selection, 
coordination, or arrangement of functional physical movements such as 
sports movements, exercises, and other ordinary motor activities alone 
do not represent the type of authorship intended to be protected under 
the copyright law as a choreographic work.
    In addition to the requirement that a compilation result in a 
section 102(a) category of authorship, the Copyright Office finds that 
section 102(b) precludes certain compilations that amount to an idea, 
procedure, process, system, method of operation, concept, principle or 
discovery, regardless of the form in which it is described, explained, 
illustrated, or embodied in such work. In the view of the Copyright 
Office, a selection, coordination, or arrangement of exercise 
movements, such as a compilation of yoga poses, may be precluded from 
registration as a functional system or process in cases where the 
particular movements and the order in which they are to be performed 
are said to result in improvements in one's health or physical or 
mental condition. See, e.g, Open Source Yoga Unity v. Choudhury, 2005 
WL 756558, *4, 74 U.S.P.Q.2d 1434 (N.D. Cal. 2005) (``Here, Choudhury 
claims that he arranged the asanas in a manner that was both 
aesthetically pleasing and in a way that he believes is best designed 
to improve the practitioner's health.'').\1\ While such a functional 
system or process may be aesthetically appealing, it is nevertheless 
uncopyrightable subject matter. A film or description of such an 
exercise routine or simple dance routine may be copyrightable, as may a 
compilation of photographs of such movements. However, such a copyright 
will not extend to the movements themselves, either individually or in 
combination, but only to the expressive description, depiction, or 
illustration of the routine that falls within a section 102(a) category 
of authorship.
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    \1\ The court in Open Source Yoga Unity did not address section 
102(b). See also the discussion of Open Source Yoga Unity below.
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    The relationship between the definition of compilations in section 
101 and the categories of authorship in section 102(a) has been 
overlooked even by the Copyright Office in the past. The Office has 
issued registration certificates that included ``nature of authorship'' 
statements such as ``compilations of exercises'' or ``selection and 
arrangement of exercises.'' In retrospect, and in light of the Office's 
closer analysis of legislative intent, the

[[Page 37608]]

Copyright Office finds that such registrations were issued in error.
    The Office recognizes that in one unreported decision, a district 
court concluded, albeit with misgivings, that there were triable issues 
of fact whether a sufficient number of individual yoga asanas were 
arranged in a sufficiently creative manner to warrant copyright 
protection. See Open Source Yoga Unity, discussed above. However, that 
court did not consider whether section 102(a) or (b) would bar a 
copyright claim in such a compilation.
    The Copyright Office concludes that the section 102(a) categories 
of copyrightable subject matter not only establish what is 
copyrightable, but also necessarily serve to limit copyrightable 
subject matter as well. Accordingly, when a compilation does not result 
in one or more congressionally-established categories of authorship, 
claims in compilation authorship will be refused.

    Dated: June 18, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-15235 Filed 6-21-12; 8:45 am]
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