© 2011 JOHN CORNELL FULLER
Copyrights are a form of Intellectual Property (IP) protection that stems from the U.S. Constitution. Copyright protection was originally created to promote the sciences by protecting authors and their writings, but today protection extends to authors’ rights in a wide variety of creative works including books, plays, songs, films and computer programs.
Copyrights are one part of the U.S. IP regime and are designed to protect creative and artistic expressions. They are distinct from patents that generally protect inventions, procedures and discoveries and trademarks that help communicate the source of goods and services to consumers. In addition, because copyrights are concerned with protecting “writings,” it does not allow individuals to control ideas underlying the physical expression. For example, the author of a novel can defend against others who use their specific characters and settings, but cannot claim ownership over the fundamental idea that the protagonist is a young wizard or vampire.
Copyrights are available to anyone whose creation meets certain legal requirements and protection over these creative works goes into effect at the moment the work meets these standards.
By the letter of the law, copyrights protect “original works of authorship fixed in any tangible medium of expression.” Though this phrase may seem like vague legalese, it is the core of copyright law and is important to break down and truly understand. There are three essential parts to consider:
(1) What constitutes a work of authorship?
(2) What makes a work original?
(3) When is a work fixed in a tangible medium of expression?
Being aware of the hurdles within these basic elements of copyright is crucial to any initial evaluation of whether copyright protection is available.
(1) Works of Authorship
Works of authorship are the basic subject matter of copyright law. They are general types of endeavors that can garner copyright protection if they are sufficiently original and appropriately fixed in a medium. The Copyright Act identifies several general areas that are eligible for protection:
• Literary works (including novels, poetry, manuscripts, periodicals, computer software)
• Musical works (including sheet music or recorded music)
• Dramatic works (including plays and other theatrical presentations)
• Pantomimes and choreographic works (dances and other series of movements)
• Pictorial, graphic, and sculptural works (including fine arts, photographs, maps)
• Motion pictures and other audiovisual works (including films, television programs)
• Sound recordings (including musical, spoken or other sounds)
• Architectural works (including designs and complete buildings)
The Copyright Office has been quite clear that these categories are to be read broadly. For example, the advent of computers and their software required a broad reading of the traditional notion of literary works to allow protection for computer software under copyright law. In practice, most creative works are eligible for copyright protection unless they begin to resemble the subject matter of other areas of IP. For example, as discussed above, patents are necessary to protect inventions. Therefore, if sculptural design has a useful function, the creator may need a patent, not a copyright, to protect against infringement of the design’s useful qualities. Similarly, if one selects a name for their new company, it may not be a sufficient work of authorship, but a trademark will help insulate the company against competitors.
To be considered original, a work must demonstrate some amount of creativity. Until a major court decision in the 1990s, simply expending substantial time and effort on a work was sufficient to meet this criterion. This allowed individuals to copyright their collections of otherwise public information, such as legal cases or telephone listings. The Supreme Court found that allowing individuals to copyright collections of information, though tediously constructed, was akin to allowing copyright over the facts themselves. The practical effect is that a work that simply restates public information is not copyrightable.
So how much creativity is enough for a work to be considered original? Not very much. A clear standard has not developed but it appears to be a fairly low bar. Even a work that is a compilation of information may be sufficiently original if the author edits or highlights certain facts to make the information more accessible to the general public. When evaluating newly created literary or musical works originality is rarely a concern. That said, excessive similarity to existing works may raise questions of copyright infringement, but that will be the subject of another article.
(3) Fixed in Any Tangible Medium of Expression
The final criterion for copyright protection, that the work be fixed in a tangible medium of expression, is essentially a requirement that the author has a record of creating the work. For most works this requirement is easily met as part of the work itself (e.g., printed pages of a novel, the film of motion picture or the code of a computer program). Nevertheless, other works, such as songs and dances, may be performed without being fixed in a tangible medium. Therefore, if a song is first performed on stage, it cannot be protected by copyright until it is written as sheet music or the audio is recorded. It is not important what medium the author chooses, as long as it fully captures the work and can be perceived by others either directly or with the aid of a device, such as a computer or compact-disc player.
In summary, copyright protection is available to anyone whose creative expression meets the low legal thresholds. First, it must fit within one of the broad categories of protectable works; second, it must demonstrate some creativity beyond the simple recitation of public facts and; third, it must be recorded so that others can witness the expression.