MEA CULPA: U.S. Copyright Office Clarifies Definition of "Compilation" Under Copyright Act

by Manatt, Phelps & Phillips, LLP
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[authors: Justin Jones Rodriguez and Emil Petrossian]

The U.S. Copyright Office recently published a little-noticed, yet potentially far-reaching, "Statement of Policy; Registration of Compilations" in the Federal Register ("Statement"), restricting the definition of "compilation" under Section 103 of the Copyright Act ("Act") to selections and arrangements of elements that result in a work of authorship falling within Section 102(a) of the Act.

A "compilation" is a work that collects and assembles preexisting materials or selects, coordinates, or arranges data in such a way that the resulting work as a whole constitutes an original work of authorship.  The relevant case law on compilations, led by the U.S. Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), does not address whether the selection, coordination, or arrangement of preexisting materials must relate to the categories of copyrightable subject matter set forth in Section 102(a) of the Act to be protectable.

Section 102(a) extends copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."  Under Section 102(a), works of authorship include "(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works."

Relying on the plain language and legislative history of the Act, the Copyright Office clarified in the Statement that to be registrable as a copyrighted work, a compilation must fall within one or more of the categories of authorship enumerated in Section 102(a).  The Copyright Office will now refuse to register a compilation that does not fall within at least one of the categories listed in Section 102(a).  The list of categories of copyrightable materials in Section 102(a) is nonexhaustive, of course, as evidenced by the use of the word "include" in the statute.  But the Copyright Office interpreted the use of the word "include" as intended to give Congress the flexibility to create new categories of copyrightable materials in the future.

In addition, the Copyright Office clarified that it will not register a work that is a mere "compilation of ideas," in light of Section 102(b)'s directive that copyright protection for an original work of authorship does not extend "to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."  Thus, while the Copyright Office will not register a work that is a mere "compilation of ideas," "selection and arrangement of handtools," or "compilation of rocks," it will register an original compilation that qualifies as a literary work.  For example, the Copyright Office will register a list containing an author's 50 favorite restaurants because it constitutes a literary work within the purview of Section 102(a), but not a list of 50 restaurants in a particular geographic area.

In adopting a more restrictive approach to the registration of compilations, the Copyright Office admitted that certain previously issued compilation registrations that do not fall within the specific categories enumerated in Section 102(a), such as "compilations of exercises" and "selection and arrangement of exercises," were issued in error.  Specifically, the Copyright Office noted that sequences of yoga poses are not copyrightable despite its prior registration of such works:  "a selection, coordination, or arrangement of exercise movements, such as a compilation of yoga poses, may be precluded from registration as a functional system or process."

Copyright owners who question the validity of their copyright registrations in compilations may wish to consult with an expert for guidance, as it is not anticipated that the Copyright Office will affirmatively invalidate affected registrations.

REFERENCE:   U.S. Copyright Office, Statement of Policy; Registration of Compilations, 77 Fed. Reg. 37605 (June 22, 2012).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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