"A Mural Painted by an Elephant," and Other Things That Can't Be Copyrighted

Humans, yes; Animals, no; Pornography, maybe; Spotify playlists, doubtful
Twentieth Century Fox Film Corporation

Maria Pallante, a Homo Sapiens and the United States Register of Copyrights, has released a public draft of the Compendium of U.S. Copyright Office Practices, the first major revision in more than two decades.

It's 1,222 pages of pure beach reading, and in four months' time, these administrative practices take effect.

For those stuck on Donna Tartt's The Goldfinch, here are some of the highlights from Chapter 300 ("Copyrightable Authorship: What Can Be Registered").

The Copyright Office is re-emphasizing the "human authorship requirement," perhaps in light of a discussion that trailed Wikimedia's refusal to abide by a photographer's demand to take down a monkey selfie. Since copyright law only protects "the fruits of intellectual labor" that "are founded in the creative powers of the mind," those who wish to register works produced by nature, animals or plants are out of luck. The same goes for any prankster channeling divine or supernatural beings.

Not clear? Pallante has some examples:

  • "A photograph taken by a monkey"
  • "A mural painted by an elephant."
  • "A claim based on the appearance of actual animal skin."
  • "A claim based on driftwood that has been shaped and smoothed by the ocean."
  • "A claim based on cut marks, defects, and other qualities found in natural stone."
  • "An application for a song naming the Holy Spirit as the author of the work."

A corollary to this "humans-only" rule is that the Copyright Office won't register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. Listen up, Hollywood. Examples include:

  • "Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD."
  • "De-clicking or reducing the noise in a preexisting sound recording or converting a sound recording from monaural to stereo sound."
  • "Transposing a song from B-major to C-major."

Then, there's the section on selection, coordination and arrangement. Of note to anyone who thinks they've compiled the world's most awesome Spotify playlist. And the estate of Arthur Conan Doyle. No, the Copyright Office won't register:

  • "A compilation that contains an obvious selection, coordination, and/or arrangement of material, such as a complete list of stories written by Zane Grey between 1930 and 1939, a complete collection of Arthur Conan Doyle's Sherlock Holmes stories, or a collection of a feature writer's contributions to a particular newspaper over a period of six months arranged in chronological order."

Beyonce and staff at Saturday Night Live, listen up. The Copyright Office won't register:

  • "Choreography that has never been filmed or notated."
  • "A work communicated solely through conversation or a live broadcast that has not been filmed, recorded, written, or transcribed."
  • "A dramatic sketch or musical composition improvised or developed from memory that has not been filmed, recorded, or transcribed."

Philip Glass, beware. Your minimalism might be de minimis. Stephen Colbert, wear a map of your home state proudly:

  • "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 musical phrase consisting of three notes."
  • "A sound recording consisting of a single tone."
  • "A public domain photograph of Winston Churchill combined with the word 'Commitment' and the quotation 'Never, never, never give up.' "
  • "An outline map of South Carolina with a blue heart in the center of the design featuring the white crescent moon and white palmetto tree from the state flag."

The Copyright Office notes near the end of Chapter 300 that pornographic works may be registered, "provided that they contain a sufficient amount of original authorship." Sadly, however, Pallante gives no examples.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner