Chapter 900: 5 12/22/2014

Chapter 900 : 5 12/22/2014

COMPENDIUM: Chapter 900

Visual Art Works

901 What This Chapter Covers

This Chapter covers issues related to the examination and registration of visual art works. Visual art works include a wide variety of pictorial, graphic, and sculptural works and architectural works, which are discussed in more detail below.

The U.S. Copyright Office uses the term “visual art works” and “works of the visual arts” to collectively refer to the types of works listed in Sections 903.1 and 903.2 below. This Chapter does not discuss “works of visual art,” which is a specific class of works that are eligible for protection under the Visual Artists Rights Act. See 17 U.S.C. § 101 (definition of “work of visual art”), 106A. For a definition of this term and for information concerning the Visual Arts Registry for such works, see Chapter 2300, Section 2314.

Likewise, this Chapter does not discuss the registration and examination of mask works or vessel designs, which are examined by the Visual Arts Division of the U.S. Copyright Office. For information on the registration and examination of mask works, and vessel designs, see Chapters 1200 and 1300.

902 Visual Arts Division

The U.S. Copyright Office’s Visual Arts Division (“VA”) handles the examination and registration of all visual art works. The registration specialists in VA have experience reviewing a variety of visual art works and specialize in these particular types of work.

903 What Is a Visual Art Work?

For purposes of registration, the U.S. Copyright Office defines visual art works as (i) pictorial, graphic, and sculptural works, and (ii) architectural works.

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903.1 Pictorial, Graphic, and Sculptural Works

The most common types of visual art works are pictorial, graphic, and sculptural works. These types of works include:

17 U.S.C. § 101 (definition of “pictorial, graphic, and sculptural works”). For information concerning specific types of pictorial, graphic, and sculptural works, see Sections 908 through 923.

Congress made it clear that pictorial, graphic, and sculptural works are subject to an important limitation, namely that useful articles and functional elements of pictorial, graphic, and sculptural works are not copyrightable unless they are physically or conceptually separable from the functional or useful elements of the work. For a definition and discussion of “useful articles,” see Section 924.

903.2 Architectural Works

The Copyright Act protects certain architectural works, which are defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” 17 U.S.C. § 101. An architectural work “includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” Id. For detailed information concerning architectural works, see Section 923.

904 Fixation of Visual Art Works

A visual art work must be “fixed” in a “tangible medium of expression” to be eligible for copyright protection. 17 U.S.C. § 102(a). The authorship may be new or may consist of Chapter 900: 7 12/22/2014 registrable derivative authorship. The basic requirement is that the work must be embodied in some form that allows the work to be “perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101 (definition of “fixed”). The U.S. Copyright Office will register visual art works that are embodied in a wide variety of forms, including:

This is not an exhaustive list and the Office will consider other forms of embodiment on a case-by-case basis. In particular, architectural works do not have to be constructed to be eligible for copyright protection.

While most visual art works are fixed by their very nature (e.g., a sculpture, a painting, or a drawing), there are some works that may not be sufficiently fixed to warrant registration. Specifically, the Office cannot register a work created in a medium that is not intended to exist for more than a transitory period, or in a medium that is constantly changing.

Most visual art works satisfy the fixation requirement, because the deposit copy(ies) or identifying material submitted with the application usually indicate that the work is capable of being perceived for more than a transitory duration. However, the fact that uncopyrightable material has been fixed through reproduction does not make the underlying material copyrightable. For example, a photograph of a fireworks display may be a copyrightable fixation of the photographic image, but the fireworks themselves do not constitute copyrightable subject matter. Similarly, a textual description of the Chapter 900: 8 12/22/2014 idea for a painting may be a copyrightable fixation of the text, but it is not a fixation of the painting described therein.

As a general rule, applicants do not have to submit an original or unique copy of a visual art work in order to register that work with the Office. In most cases, applicants may submit photographs or other identifying materials that provide the Office with a sufficient representation or depiction of the work for examination purposes.

When completing an application, applicants should accurately identify the work that is being submitted for registration, particularly when submitting identifying material. For example, if the applicant intends to register a sculpture and submits a photograph of the sculpture as the identifying material, the applicant should expressly state “sculpture” in the application. Otherwise, it may be unclear whether the applicant intends to register the photograph or the sculpture shown in the photograph.

Before submitting identifying material for a published visual art work, applicants should consult the best edition requirements, which are listed in the “Best Edition Statement” set forth in Appendix B to Part 202 of the Office’s regulations. The Best Edition Statement is also posted on the Office’s website in Circular 7B: Best Edition of Published Copyrighted Works for the Collections of the Library of Congress ( For specific deposit requirements for different types of visual art works, see Chapter 1500, Section 1509.3.

905 Copyrightable Authorship in Visual Art Works

The U.S. Copyright Office may register a visual art work (i) if it is the product of human authorship, (ii) if it was independently created (meaning that the work was not merely copied from another source), and (iii) if it contains a sufficient amount of original pictorial, graphic, sculptural, or architectural authorship. The Office reviews visual art works consistent with the general principles set forth in Chapter 300 (Copyrightable Authorship: What Can Be Registered), as well as the guidelines described in this Chapter.

In the case of two-dimensional works, original authorship may be expressed in a variety of ways, such as the linear contours of a drawing, the design and brush strokes of a painting, the diverse fragments forming a collage, the pieces of colored stone arranged in a mosaic portrait, among other forms of pictorial or graphic expression.

In the case of three-dimensional works, original authorship may be expressed in many ways, such as carving, cutting, molding, casting, shaping, or otherwise processing material into a three-dimensional work of sculpture.

Likewise, original authorship may be present in the selection, coordination, and/or arrangement of images, words, or other elements, provided that there is a sufficient amount of creative expression in the work as a whole.

In all cases, a visual art work must contain a sufficient amount of creative expression. Merely bringing together only a few standard forms or shapes with minor linear or spatial variations does not satisfy this requirement.

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The Office will not register works that consist entirely of uncopyrightable elements (such as those discussed in Chapter 300, Section 313 and Section 906 below) unless those elements have been selected, coordinated, and/or arranged in a sufficiently creative manner. In no event can registration rest solely upon the mere communication in two- or three-dimensional form of an idea, method of operation, plan, process, or system. In each case, the author’s creative expression must stand alone as an independent work apart from the idea which informs it. 17 U.S.C. § 102(b).

For more information on copyrightable authorship, see Chapter 300 (Copyrightable Authorship: What Can be Registered).

906 Uncopyrightable Material

Section 102(a) of the Copyright Act states that copyright protection only extends to “original works of authorship.” 17 U.S.C. § 102(a). Works that have not been fixed in a tangible medium of expression, works that have not been created by a human being, and works that are not eligible for copyright protection in the United States do not satisfy this requirement. Likewise, the copyright law does not protect works that do not constitute copyrightable subject matter or works that do not contain a sufficient amount of original authorship.

The U.S. Copyright Office will register a visual art work that includes uncopyrightable material if the work as a whole is sufficiently creative and original. Some of the uncopyrightable elements that are commonly found in visual art works are discussed in Sections 906.1 through 906.8 below. For a general discussion of uncopyrightable material, see Chapter 300, Section 313.

906.1 Common Geometric Shapes

The Copyright Act does not protect common geometric shapes, either in two- dimensional or three-dimensional form. There are numerous common geometric shapes, including, without limitation, straight or curved lines, circles, ovals, spheres, triangles, cones, squares, squares, cubes, rectangles, diamonds, trapezoids, parallelograms, pentagons, hexagons, heptagons, octagons, and decagons.

Generally, the U.S. Copyright Office will not register a work that merely consists of common geometric shapes unless the author’s use of those shapes results in a work that, as a whole, is sufficiently creative.


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and any design in the marble is merely an attribute of the natural stone, rather than a product of human expression.