variety of choices available to the author that must be evaluated, but the actual work that the author created.
310.9 Material Composition of the Work
As a general rule, the materials used to create a work have no bearing on the originality analysis. For example, the U.S. Copyright Office will not consider the fact that a jewelry design was constructed with precious metals or gemstones, or the fact that a silk screen was printed on a particular paper stock.
310.10 Commercial Appeal or Success
The U.S. Copyright Office will not consider the marketability or commercial success of the work, because these issues are irrelevant to the originality analysis. “Works may experience commercial success even without originality and works with originality may enjoy none whatsoever.” Paul Morelli Design, Inc. v. Tiffany & Co., 200 F. Supp. 2d 482, 488 (E.D. Pa. 2002).
311 Derivative Works
This Section discusses the U.S. Copyright Office’s practices and procedures for evaluating the copyrightability of a derivative work.
For a definition and general discussion of derivative works, see Chapter 500, Section 507. For specific instructions on how to prepare an application to register this type of work, see Chapter 600, Sections 613.6, 617.5, 618.5, 620.7, and 621.
311.1 Copyrightable Subject Matter
A derivative work may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter.
As discussed in Section 307 above, derivative works are a subset of the subject matter categories, rather than a separate and distinct category of work. In other words, the new material that the author contributed to the derivative work must fall “within one or more of the categories listed in section 102 [of the Copyright Act].” H.R. Rep. No. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. If the new material does not fall within one or more of the congressionally established categories of authorship, the registration specialist may communicate with the applicant if the authorship is questionable or may refuse registration. For example, the Office may register a drawing of a dress or a photograph of a garden, but it cannot register a “revised dress design” or a “genetically modified plant,” because clothing and plants do not constitute copyrightable subject matter under Section 102(a) of the Copyright Act. Cf. Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012).
In addition, the preexisting work that has been recast, transformed, or adapted, “must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.” H.R. Rep. No. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. In other words, the preexisting work must qualify as a literary work; a musical work; a dramatic work; a pantomime or choreographic work;
