U.S. Copyright Office Clarifies Examination of Compilations and Choreographic Works
On June 22, 2012, the U.S. Copyright Office issued a clarification on the examination of compilations, specifically choreographic works, effectively limiting copyright protection to only those works that also fall under the categories identified in section 102(a) of the Copyright Act.1 Works of authorship under section 102(a) include: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Only compilations that may also be classified under the works of authorship listed above are copyrightable.
Protection of compilations, including telephone books and choreographic works, has long been available. Generally, the facts displayed in a telephone book and dance moves in the public domain are deemed uncopyrightable subject matter; however, the selection, coordination and arrangement of such facts and dance moves is copyrightable. How such facts and dance moves are displayed or illustrated is considered an original work of authorship, which allows for copyright protection. However, not all facts that are selected, coordinated and arranged are copyrightable, and the definition of a compilation has lent itself to areas of grey in interpretation. For example, an alphabetical display of names in a phone book is not original enough to garner protection, but organizing names into sections based on types of businesses, residences, or specialty areas is copyrightable expression.2 Likewise, social dance steps and simple dance routines themselves are not protected under copyright; although the composition and arrangement of dance movements is copyrightable when those movements are organized into an integrated, coherent, and expressive whole, such as a ballet.
In a recent case involving the propriety of Bikram yoga exercises, the U.S. District Court for the Northern District of California held such exercises may be copyrightable, although protection would be very thin.3 Under the new examination procedures, copyright protection would not extend to a series of such exercises, but only to how those exercises are depicted or illustrated as an original work of authorship under section 102(a). The Copyright Office stated in its report that a selection, coordination, or arrangement of exercise movements “may be precluded from registration as a functional system or process in cases where the particular movements and the order in which they are to be performed are said to result in improvements in one’s health or physical or mental condition.”4 Exercise routines in themselves are therefore not copyrightable, but for how they are displayed or illustrated in a book or on a DVD.
Any works defined as a compilation must fall under one of the categories identified in section 102(a) to be eligible for copyright protection. Any registered works that do not fall within one of the categories have been deemed issued in error. Further, any applicant attempting to register a compilation will find that the application will be denied, unless the work also falls under one of the categories identified in section 102(a). More information may be found at: http://www.copyright.gov/fedreg/2012/77fr37605.pdf.
If you have any questions or wish to discuss how this report may impact you, please contact your attorney at Brinks Gilson & Lione.
1 Registration of Claims to Copyright, 77 Fed. Reg. 37,605 (June 22, 2012) (to be codified at 37 C.F.R. pt. 201).
2 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
3 Open Source Yoga Unity v. Choudhury, 2005 WL 756558, 74 U.S.P.Q.2d 1434 (N.D. Cal. 2005).
4 77 Fed. Reg. at 37,607.
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