The Copyright Summer Blockbuster

Maria Pallante, who holds the honor of being the Register for Copyrights in the United States Copyright Office, released mid-week the first major update in over two decades related to administrative practice. A public draft of the Compendium of U.S. Copyright Office Practice – Third Edition, or as I am now calling it the “Copyright Summer Blockbuster” was released on Wednesday. The 1,200+ page document goes into effect on December 15, 2014, which gives us all plenty of time to digest it all.

It is the “must read” publication for Summer 2014, at least for me. You can find the entire publication by going HERE. Admittedly I am still wading thru this document. But, so far there have been some interesting tidbits. Here are the Top 3 Things noteworthy in the Copyright Summer Blockbuster … so far.

  1. The Copyright Office is Your Friend.  

As the press release touted, the goal was to make the copyright office more transparent and “user” friendly. “It will serve as a technical manual for staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. As in the past, it will address fundamental principles of copyright law—for example, standards of copyrightability, joint authorship, work for hire, and termination of transfers—as well as routine questions involving fees, records retrieval, litigation documents, and other procedural matters.” Since we are all creators from our Instagram choices to our ability to record our child performing the latest Disney hit in the backseat, the need for a more user friendly copyright office experience is definitely needed.

The new document does give plenty of examples when it comes to items that could be subject to copyright protection and those that are not subject to copyright protection. The copious lists of examples, especially from “hot topic” news issues like the monkey photograph discussed in last week’s post here, is illustrative and user friendly. Everyone enjoys a good list; of course, the lists are not exhaustive. But, it does give the feel of wanting to be more user friendly.

The goal of user friendliness is admirable and one the public demands. However, does a 1,200+ page document seem on the face to be user friendly? I am not sure it does. While I appreciate the need for specificity, clearly outlining and clearing up some of these issues we all wrestle with, if your goal was ease, I am not certain the average person is going to take the time to pour thru a 1,200 page document or find it to be user friendly. But, hey, that’s why the world needs copyright nerds like myself.

  1. Clarification on What Can Be Registered.

Sometimes knowing what cannot be protected by copyright is harder to define than knowing when something can be subject to copyright protection. The document goes to great lengths to outline items that will not be subject to copyright protection. They subdivide these lists into major categories such as Blank Forms, Listing of Ingredients and Contents, Words and Short Phrases and De Minimis authorship, just to name a few. The examples come largely from cases litigating over the past decade, but find their way into this document as specific examples.

A few examples of items that are not subject to copyright protection are:

  • Substituting the pronouns “she” and “her” for “he” and “his” in a preexisting work of authorship.
  • Combining a coined term with a few short phrases that define the term.
  • A Venn diagram consisting of three overlapping circles containing the names of various personality disorders and a few words and short phrases that describe the symptoms of each condition.
  • A standard form contract for a real estate transaction requesting factual information from the buyer and containing standard legal language for the release of the seller’s interest in the property.
  • Editing that merely consists of spelling and grammatical corrections.
  • A synopsis consisting of a single sentence.
  • A musical phrase consisting of three notes.
  • A sound recording consisting of a single tone.
  • A domain name or URL (e.g., http://www.copyright.gov).
  • The title or subtitle of a work of authorship.
  • The name of a character.
  • Catchwords, catchphrases, mottoes, slogans, or other short expressions
  • A list of ingredients for a recipe.
  • A list of components for a formula, compound, prescription, or the like.
  • A list of musical tracks contained in a compact disc.
  • A product label that merely lists the ingredients for the product, merely describes the product, or merely describes the contents of the product packaging.
  1. Copyrighted Works Must be Created by a Human.

In my post last week, I questioned whether a monkey could hold a copyright. You can read the entirety of that post HERE. The release this week clarified that for copyright to exist it must be created by a human. Chapter 300, stated, “The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.”

It continued by giving examples of things that would not be subject to copyright protection, one of which included “a photography taken by a monkey.” In addition to the monkey photograph other examples of creative works not subject to copyright protection include a mural painted by an elephant, a claim based on driftwood that has been shaped and smoothed by the ocean, an application for a song naming the Holy Spirit as the author of the work.

While I did receive some criticism and pushback on my post from last week, it is nice to be validated by the Copyright Office this week. For my fellow copyright nerds out there, have you started going thru the Copyright Summer Blockbuster? What stood out to you? Take part in the Comments section below and Stay Tuned In!

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5 thoughts on “The Copyright Summer Blockbuster

  1. Hi Ryanne! This is very interesting. I read your last blog about the monkey photo. I agree that the photo isn’t copywritable. The law clearly states that a human must be the creator. However, a comment on the monkey photo blog raised some interesting points.

    If you ask a stranger to take a photo of you with your camera – the stranger (human) holds the copyright to that photo?

    You set up a camera in a remote area using a trip wire to trigger the shutter. If an animal activates the shutter no copyright protection. If a human activates the shutter then that human holds the copyright to that photo?

    Imagine this: A thief triggers a camera and the thief’s image is captured in a photo. The family returns home. Their house has been burglarized. The photo is discovered. The police find the thief because of the photo. The thief is arrested. At the trial, the photo is presented as evidence. The thief claims copyright protection of the photo. What happens to the photo? Can the thief have it removed from evidence?

    Just curious. 🙂

    • Hi Marian! Thank you for reading. Yes, technically, a stranger holding your camera does own the copyright in the photo. The person would be the author and would have applied at least a minimal degree of creativity necessary in order to receive copyright protection. And, with the example of a remote area, if the human activated the subject then it would be subject to copyright protection. And, William covered the question about the thief. I appreciate your thoughts and reading.

  2. Marian, even if the thief could claim copyright protection, the photo can be used by authorities for prosecution evidence as such use is transformative and would therefor be considered a fair use.

    • That’s nice to know. So litigation trumps copyright.

      What about the photo taken by a stranger with your camera. You post this photo online in a public place and the stranger sees it and claims copyright infringement. What happens to this photo?

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