313.4(A) Mere Copies
A work that is a mere copy of another work of authorship is not copyrightable. The Office cannot register a work that has been merely copied from another work of authorship without any additional original authorship. See L. Batlin & Son, 536 F.2d at 490 (“one who has slavishly or mechanically copied from others may not claim to be an author”); Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 195 (S.D.N.Y. 1999) (“exact photographic copies of public domain works of art would not be copyrightable under United States law because they are not original”).
As a general rule, the registration specialist will not search the Office’s records or conduct independent research to determine whether the work was created by the author(s) named in the application because the existence of similar or identical works will not preclude a claim in a work that was independently created. However, if the applicant asserts a claim in a work that is unusually similar to another work of authorship that is known to the specialist, he or she may communicate with the applicant. If the specialist determines that the author copied or incorporated another work of authorship, he or she may ask the applicant to exclude the preexisting work from the claim or may refuse registration if the author did not contribute a sufficient amount of additional original authorship to the work.
Examples:
- An exact reproduction of the Mona Lisa that cannot be distinguished from the original.
- A photocopy or scan of a photograph.
- Photocopying, scanning, or digitizing a literary work.
- Dubbing a sound recording from a preexisting recording.
- A toy model that is an exact replica of an automobile, airplane, train, or other useful article where no creative expression has been added to the original design.
313.4(B) De Minimis Authorship
The term “de minimis” comes from the legal principle “de minimis non curat lex,” which means “the law does not take notice of very small or trifling matters.” As the Supreme Court stated, “copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Feist, 499 U.S. at 363. Works that contain no expression or only a de minimis amount of original expression are not copyrightable and cannot be registered with the U.S. Copyright Office.
