As a general rule, a contribution that is “incorporated in a ‘collective work’ must itself constitute a ‘separate and independent’ work.” H.R. Rep. No. 94-1476, at 122, reprinted in 1976 U.S.C.C.A.N. at 5737; S. Rep. No. 94-473, at 105. In other words, a contribution must be an original work of authorship that is eligible for copyright protection under Section 102(a) of the Copyright Act, regardless of whether that contribution is currently protected or whether the copyright in that contribution has expired.
509.2 The Scope of the Copyright in a Collective Work
The “[c]opyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole.” 17 U.S.C. § 201(c).
The “[c]opyright in the separate contribution ‘vests initially in the author of the contribution.’” New York Times Co. v. Tasini, 533 U.S. 483, 494 (2001) (quoting 17 U.S.C. § 201(c)). The “[c]opyright in the collective work vests in the collective author” and it “extends only to the creative material contributed by that author, not to ‘the preexisting material employed in the work.’” Id. at 494 (quoting 17 U.S.C. § 103(b)). Specifically, the copyright in the collective work “extend[s] to the elements of compilation and editing that went into [creating] the collective work as a whole.” H.R. Rep. No. 94-1476, at 122, reprinted in 1976 U.S.C.C.A.N. at 5738; S. Rep. No. 94-473, at 106. In addition, it extends to “the contributions that were written for hire by employees of the owner of the collective work, and those copyrighted contributions that have been transferred in writing to the owner by their authors.” H.R. Rep. No. 94-1476, at 122. reprinted in 1976 U.S.C.C.A.N. at 5738; S. Rep. No. 94-473, at 106.
An applicant may register a collective work together with the contributions contained therein (i) if the contributions and the collective work were created by the same author, or (ii) if the copyright in the contributions and the collective work are owned by the same claimant, (iii) provided that the contributions and the collective work have not been previously published or previously registered, and provided that they are not in the public domain. If the owner of the collective work does not own all rights in the copyright for a particular contribution, that party cannot register a claim to copyright in that contribution. Instead, the contribution must be registered individually by or on behalf of the author of the contribution or the party that owns the copyright in that work. See Morris v. Business Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (“Unless the copyright owner of a collective work also owns all the rights in a constituent part, a collective work registration will not extend to the constituent part.”), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010).
Collective works often contain previously published material, previously registered material, public domain material, or material owned by a third party. If a collective work contains an appreciable amount of unclaimable material, the applicant generally should limit the claim to the new material that the author contributed to the work and the unclaimable material should be excluded from the claim. For guidance on this procedure, see Chapter 600, Section 621.8(D).
The author of a collective work may claim copyright in an original selection, coordination, and/or arrangement of preexisting material, provided that the material has been used in a lawful manner. Section 103(a) of the Copyright Act states that the
