That doesn’t mean that ONLY 40 million works are under copyright protection in the United States. That means that 40 million works have been properly registered with the US Copyright Office. An original work of authorship does not have to be registered to be under copyright protection in the United States, however. A work must meet the criteria for a sufficiently creative work. The work may take several forms (literary, musical, dramatic, pictorial, art, etc.) and it must been captured in a tangible medium of expression. Works are being registered with increased frequency. The US Copyright Office reported that it registered 443,911 claims for registration in its Annual Report for fiscal 2020.
It is important to note, however, that copyright registration must be completed in order for the owner of the copyright to bring suit for copyright infringement in federal court. Copyright registration must have been initiated by a copyright owner in order to file a claim of infringement with the new Copyright Claims Board (CCB). For more information on the CCB, have a look at our blog on the CASE Act of 2020.
The US government blog that cites this milestone also provides an example of a nuance in copyright law. Works published by the US federal government usually fall under public domain. However, this particular blog contains a photograph of wild horses from a copyrighted work that is registered. The citation for the photograph clearly indicates it is USED WITH PERMISSION. The photograph is copyrighted and may not be copied and used as if it is in the public domain.