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 Hofer Gilson
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.
* * *
Clients from around the world come to Brinks for our
copyright expertise, including our familiarity with relevant
industry, music, and art law issues. The Brinks Copyright Group
helps both artists and businesses protect copyright interests and
defend against actions for infringement.
This article is intended to provide information of general
interest to the public and is not intended to offer legal advice
about specific situations or problems. Brinks Hofer Gilson &
Lione does not intend to create an attorney-client relationship by
offering this information and review of the information shall not
be deemed to create such a relationship. You should consult a
lawyer if you have a legal matter requiring attention. For further
information, please contact a Brinks Hofer Gilson & Lione
Specific Questions relating to this article should be addressed directly to the author.
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