Copyright is a form of intellectual (as in non-physical) property granted to “original works of authorship fixed in a tangible medium of expression.” Copyright Act – Section 102(a). Considering each of these elements in turn:
- Original: Only original works are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work. A work does NOT have to be novel or unique to attain copyright protection. However, some minimum amount of original literary, pictorial/artistic, or musical expression must be demonstrated in the work.
- Works of authorship: The author is the “creator of the original expression in a work”. Copyright Office FAQ – Definitions. By default, the author is also the owner of the work unless there is an employer-employee work for hire relationship or unless there is a written agreement assigning the copyright to the commissioning party. Following creation, ownership of a work may be assigned to another party, pass by will or inheritance, etc.
- Fixed in a tangible medium of expression: Copyright protection begins the moment a work is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. Copyright Office FAQ – Copyright in General. Common ways to fix an original work is by writing it in a manuscript, drawing it on a piece of paper, typing it in a computer file, or recording it as a digital video or audio file.
According to this definition, copyright is automatically provided to creative or artistic works without the need for the author to comply with statutory formalities. That is, a work may be finished or unfinished, published or unpublished, registered with the Copyright Office or not registered, include the copyright notice (©) or not, and still be under copyright protection. However, registration is required to enforce most rights provided by the Copyright Act.
Rights Provided to Copyrighted Works
Under Section 106 of the Copyright Act, the owner of the copyright has the exclusive rights to do or authorize the following:
- All Works: Reproduce the work in copies or phonorecords
- All Works: Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- All Works: Prepare derivative works based upon the work
- Literary, Musical, Dramatic, Pantomimes and Choreographic Works, Motion Pictures and Other Audiovisual Works: Perform the work publicly
- Literary, Musical, Dramatic, Pantomimes and Choreographic Works, Pictorial, Graphic, and Sculptural Works, Motion Pictures and Other Audiovisual Works: Display the work publicly, including the images of a motion picture or other audiovisual work
- Sound Recordings: Perform the work publicly through digital audio transmission
- Pictorial, Graphic, and Sculptural Works, Architectural Works (Works of Visual Arts): under Section 106A, one-of-a-kind works of visual art and numbered limited editions of 200 or fewer copies have the following additional rights (which may not be transferred by the author to another but may be expressly waived in a written instrument):
- Attribution: ensures that artists are correctly identified with the works of art they create and not with works created by others
- Integrity: allows artists to protect their works against modifications and destructions that are prejudicial to the artists’ honor or reputation
- Creator of a work of visual art incorporated in a building has the first opportunity to make the removal of such work himself or herself if the building owner desires to remove such work from the building and removal is possible without destruction
Exclusive rights mean that no other person may perform such acts with regard to the copyrighted work without the permission of the copyright owner. Should this occur, the copyright owner may sue to stop such activities and/or receive damages for copyright infringement.
What Can be Protected Through Copyright?
Under Section 102 of the Copyright Act, copyright protection is afforded to works of authorship in the following categories:
- Literary Works – nondramatic written works not meant for performance. Includes: (nonfiction and fictional) books, novels, poetry, textbooks, website text, blog posts, reference works, directories, catalogs, advertising copy, compilations of information, databases, computer programs / source code, marketing materials, brochures.
- Musical Works – Includes: songs, scores, sheet music.
- Dramatic Works – works of the performing arts. Includes: screenplay, play or other scripts, musicals.
- Pantomimes and Choreographic Works – works of the performing arts.
- Pictorial, Graphic, and Sculptural Works – two-dimensional and three-dimensional works of fine, graphic, and applied art. Includes: photographs, artwork, prints and art reproductions, paintings, maps.
- Motion Pictures and Other Audiovisual Works – works that consist of a series of related images that are intended to be shown by the use of a machine or device, together with accompanying sounds, if any. Includes: feature films, documentary films, animated films, television shows, movies on DVD, videos, videogames.
- Sound Recordings – works that result from the fixation of a series of musical, spoken, or other sounds. Includes all forms of recorded sounds including songs and albums on CD or MP3 but does not include sounds that accompany an audiovisual work (which are included in the motion pictures and other audiovisual works category)
- Architectural Works – Includes: technical drawings, architectural designs.
What Cannot be Protected Through Copyright?
Because there is a minimal amount of originality or creative expression required to obtain copyright protection, several categories of works cannot be protected by copyright. These include:
- Titles, names (ex: performing groups), pseudonyms (ex: pen names), business or organization names, produce or service names, short phrases, catchphrases, mottos, expressions, clauses, slogans.
- Logos may be protected by trademark if they indicate source; logos may be protected by copyright if they are sufficiently original works of artistic authorship. Copyright Office FAQ – What Does Copyright Protect?.
- Facts, ideas, formulas, algorithms, equations, procedures, plans, methods of operation, systems, processes, concepts, principles, discoveries, or devices (ex: slide rulers, wheel dials, perpetual calendar designs). Most of these articles are specifically excluded by Section 102(b).
- A useful article, or an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information, may be protected by patent. The way in which the useful article is expressed – its actual description, explanation, or illustration – may be protected by copyright. Copyright Office – Circular 31: Ideas, Methods, or Systems.
- Works consisting entirely of information that is common property and containing no original authorship or only familiar symbols or designs. Examples: standard calendars, height and weight charts, tape measures, rulers, schedules of sporting events, lists or tables taken from public documents or sources, mere listing of ingredients or contents.
- Mere variations of typographic ornamentation, formatting, arrangement, lettering, or coloring.
- Blank forms and similar works designed to record rather than to convey information. Examples: column headings and simple checklists.
See Copyright Office – Circular 1: Copyright Basics. Additionally, works that have not been fixed in a tangible form of expression (ex: improvisational speeches or performances that have not been written or recorded) cannot be copyrighted.