data file, or an audiovisual work captured on film. Nevertheless, some works of authorship may not satisfy the fixation requirement, such as an improvisational speech, sketch, dance, or other performance that is not recorded in a tangible medium of expression. Other works may be temporarily embodied in a tangible form, but may not be sufficiently permanent or stable to warrant copyright protection, such as “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television, … or captured momentarily in the memory of a computer.” H.R. Rep. No. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666 (internal quotations marks omitted).
The Office rarely encounters works that do not satisfy the fixation requirement because the Office requires applicants to submit copies or phonorecords that contain a visually or aurally perceptible copy of the work. However, the Office may communicate with the applicant or may refuse registration if the work or the medium of expression only exists for a transitory period of time, if the work or the medium is constantly changing, or if the medium does not allow the specific elements of the work to be perceived, reproduced, or otherwise communicated in a consistent and uniform manner.
306 The Human Authorship Requirement
The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.
The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative examples of works that do not satisfy this requirement, see Section 313.2 below.
307 Copyrightable Subject Matter
A work of authorship may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter.
Section 102(a) of the Copyright Act states that the subject matter of copyright includes the following categories of works:
- Literary works.
- Musical works, including any accompanying words.
- Dramatic works, including any accompanying music.
- Pantomimes and choreographic works.
- Pictorial, graphic, and sculptural works.
- Motion pictures and other audiovisual works.
