310.2 Aesthetic Value, Artistic Merit, and Intrinsic Quality
In determining whether a work contains a sufficient amount of original authorship, the U.S. Copyright Office does not consider the aesthetic value, artistic merit, or intrinsic quality of a work. H.R. Rep. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.C.C.A.N. at 5664. For example, the Office will not look for any particular style of creative expression. Likewise, the Office will not consider whether a work is visually appealing or written in elegant prose.
As the Supreme Court noted, “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). The legislative history for the Copyright Act recognizes that “the standard of originality established by the courts … does not include requirements of … esthetic merit” and expressly states that Congress did not intend “to enlarge the standard of copyright protection” to impose this requirement. See H.R. Rep. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.C.C.A.N. at 5664.
For the same reasons, the Office will not consider the truth or falsity of the facts set forth in a work of authorship. Nor will the Office consider the soundness or the unsoundness of the views espoused in the work. See Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973) (“The gravity and immensity of the problems, theological, philosophical, economic and scientific, that would confront a court if this view were adopted are staggering to contemplate. It is surely not a task lightly to be assumed, and we decline the invitation to assume it.”) (footnote omitted).
310.3 Symbolic Meaning and Impression
When the U.S. Copyright Office examines a work of authorship, it determines whether the work “possess[es] the minimal creative spark required by the Copyright Act and the Constitution.” Feist, 499 U.S. at 363. The symbolic meaning or impression of a work is irrelevant to this determination.
The Office will use objective criteria to determine whether a work constitutes copyrightable subject matter and satisfies the originality requirement. In making this determination, the Office will consider the expression that is fixed in the work itself and is perceptible in the deposit copy(ies). Specifically, the Office will focus only on the actual appearance or sound of the work that has been submitted for registration, but will not consider any meaning or significance that the work may evoke. The fact that creative thought may take place in the mind of the person who encounters a work has no bearing on the issue of originality. See 17 U.S.C. § 102.
310.4 Look and Feel
The U.S. Copyright Office will not consider the so-called “look and feel” of a work. Invoking a work’s “feel” is not a viable substitute for an objective analysis of the work’s fixed and creative elements. See 4 Melville & David Nimmer, Nimmer on Copyright §13.03[A][1][c] (2013) (criticizing the use of “feel” as a “wholly amorphous referent” that “merely invites an abdication of analysis”).
