In determining whether a work is copyrightable, the Office analyzes questions such as:
- Is the work eligible for copyright protection in the United States?
- Has the work been fixed in a tangible medium of expression?
- Was the work created by a human author?
- Does the work constitute copyrightable subject matter?
- Is the work sufficiently original?
- Was the work independently created?
- Does the work possess at least some minimal degree of creativity?
If the answer to all of these questions is “yes,” the work is copyrightable and the claim may be registered, as long as there are no other issues in the registration materials that raise questions concerning the claim and as long as the other legal and formal requirements have been met.
These questions are discussed in Sections 304 through 308 below. For information on how the Office interprets these questions when examining derivative works, compilations, and collective works, see Sections 311 and 312.
For information on how the Office interprets these questions when examining specific types of literary works, works of the performing arts, and visual art works, see Chapters 700, 800, and 900.
303 Copyrightability Is Determined Based on U.S. Copyright Law
The U.S. Copyright Act is the exclusive source of copyright protection in the United States. To register a work with the U.S. Copyright Office, all applicants—both foreign and domestic—must satisfy the requirements of U.S. copyright law. In determining whether a work is copyrightable, the Office applies U.S. copyright law pursuant to title 17 of the U.S. Code, even if the work was created in a foreign country, first published in a foreign country, or created by a citizen, domiciliary, or habitual resident of a foreign country.
304 Eligibility
The U.S. Copyright Office may register a work of authorship if it is eligible for copyright protection in the United States. All U.S. works—both published and unpublished—created on or after January 1, 1978, are eligible for U.S. copyright protection. 17 U.S.C. § 104(a), (b). Additionally, all unpublished foreign works and most published foreign works are eligible for U.S. copyright protection. Id. For more information on the eligibility requirements for published foreign works, see Chapter 2000, Section 2003.
