310.5 The Author’s Inspiration and Intent
When examining a work for original authorship, the U.S. Copyright Office will not consider the author’s inspiration for the work, creative intent, or intended meaning. Instead, the Office will focus solely on the appearance or sound of the work that has been submitted for registration to determine whether it is original and creative within the meaning of the statute and the relevant case law. The fact that creative thought may take place in the mind of the person who created a work (or a person viewing or listening to the work) has no bearing on the issue of originality unless the work objectively demonstrates original authorship. Mental processes do not themselves provide an objective basis for evaluating creativity. See 17 U.S.C. § 102(b).
310.6 The Author’s Skill and Experience
The U.S. Copyright Office will not consider the author’s creative skill and experience when evaluating a work for copyrightable authorship, because the author’s personal or professional history is irrelevant to the determination of copyrightability. Instead, the Office will focus solely on the appearance or sound of the work that has been submitted for registration to determine whether it satisfies the originality requirement. See L. Batlin & Son, 536 F.2d at 491 (finding that “the requirement of originality [cannot] be satisfied simply by the demonstration of ‘physical skill’ or ‘special training’”).
310.7 The Time, Effort, or Expense Required to Create the Work
When examining a work for original authorship, the U.S. Copyright Office will focus on the appearance or sound of the work that the author created but will not consider the amount of time, effort, or expense required to create the work. These issues have no bearing on whether a work possesses the minimum creative spark required by the Copyright Act and the Constitution. See, e.g., Feist, 499 U.S. at 352–354, 364 (rejecting the so-called “sweat of the brow” doctrine that provided copyright protection solely as a “reward for the hard work” of creating a work). As Justice O’Connor observed, “copyright rewards originality, not effort” and “[w]ithout a doubt, the ‘sweat of the brow’ doctrine flouted basic copyright principles.” Id. at 352, 354, 364.
310.8 Design Alternatives
When examining a work for original authorship, the U.S. Copyright Office will focus on the appearance or sound of the work that has been submitted for registration, including its individual elements and the work as a whole, to determine whether it contains a sufficient amount of original and creative authorship.
As a general rule, the Office will not consider possible design alternatives that the author may have considered when he or she created the work. Likewise, the Office will not consider potential variations in the use of the work, such as the fact that a work could be presented in a different color, in a different size, or with a different orientation.
The creative process often requires many choices involving the size, coloring, orientation, proportion, configuration, perspective, or other constituent elements of the work. These types of choices are present in every work of authorship. It is not the
