1945)). Thus, “the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the [preexisting] work in some meaningful way.” Schrock v. Learning Curve International, Inc., 586 F.3d 513, 521 (7th Cir. 2009).
“While the quantum of originality that is required may be modest indeed,” courts have recognized that derivative works “[l]acking even a modest degree of originality … are not copyrightable.” L Batlin & Son, 536 F.2d at 490; Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 911 (2d Cir. 1980). Miniscule variations do not satisfy this requirement, such as merely changing the size of the preexisting work. Merely recasting a work from one medium to another alone does not support a claim in derivative authorship. See L. Batlin & Son, 536 F.2d at 491. “Nor can the requirement of originality be satisfied simply by the demonstration of ‘physical skill’ or ‘special training.’” Id.
A registration for a derivative work only covers the new authorship that the author contributed to that work. It does not cover the authorship in the preexisting work(s) that has been recast, transformed, or adapted by the author of the derivative work. H.R. Rep. No. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670.
Likewise, a registration for a derivative work does not cover any previously published material, previously registered material, or public domain material that appears in the derivative work. Nor does it cover any material that is not owned by the copyright claimant. See 17 U.S.C. § 103(b) (stating that the copyright in a derivative work is “independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material”). If a derivative work contains an appreciable amount of previously published material, previously registered material, public domain material, or third party material, the applicant should exclude that material from the claim using the procedure described in Chapter 600, Section 621. For additional information concerning the scope of the copyright in a derivative work, see Chapter 500, Section 507.2.
312 Compilations and Collective Works
This Section discusses the U.S. Copyright Office’s general practices and procedures for evaluating the copyrightability of compilations and collective works.
For a definition and general discussion of these types of works, see Chapter 500, Sections 508 and 509. For specific instructions on how to prepare an application to register a compilation, see Chapter 600, Sections 613.7, 617.5, 618.6, 620.7, and 621.8(C). For specific instructions on how to prepare an application to register a collective work, see Chapter 600, Sections 610.4, 613.8, 618.7, 620.8, and 621.8(D).
312.1 Copyrightable Subject Matter
A compilation or a collective work may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter.
As discussed in Section 307, compilations and collective works are a subset of the subject matter categories set forth in Section 102(a) of the Copyright Act, rather than separate and distinct categories of works. See Registration of Claims to Copyright, 77
