• What is a copyright? What can/cannot be copyrighted?

    Copyrights Generally


    A copyright is an umbrella term used to describe a series of rights granted to an author of an original creative expression for the protection of their intellectual property. The source of these rights is found in the Copyright & Patent Clause of Article 1, Section 8 of the United States Constitution, and codified in federal law under Title 17 of the U.S. Code. The subject of a copyright is a form of property, therefore copyrights are transferable, licensable, inheritable, and may vest in either an individual or business entity. If they are violated, they are actionable in civil court. Some copyright violations may also be subject to criminal penalties. Copyrights are based in federal law, so complaints of copyright infringement may be brought in federal court. This article will approach copyright law as it is practiced in the federal courts, especially the 2nd and 9th Circuit Courts of Appeals, as those courts have generated the bulk of relevant case law.

    What can be copyrighted?


    Copyrights are extended to limited types of intellectual property. Protection exists only for original works of authorship fixed in a tangible medium of expression. Furthermore, a work must also fall into at least one of 8 categories:

    1) literary works;
    2) musical works, including accompanying works;
    3) dramatic works, including accompanying works;
    4) pantomimes and choreographed works;
    5) pictorial, graphic, and sculptural works;
    6) motion pictures and other audiovisual works;
    7) sound recordings;
    8) architectural works.

    If a work falls outside of these categories then it is not protected by copyright; it may, however, be eligible for protection through unfair competition & trademark laws, patent laws, or equitable remedies.

    In order to qualify for protection, a work must also be original and fixed in a tangible form. These requirements are not very difficult to meet. A very slight amount of creativity is sufficient originality. For instance, simply choosing a camera angle for a photograph demonstrates originality for the purposes of obtaining copyright protection. The fixation requirement is also not very stringent. As long as a work may be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, it is considered fixed in a tangible medium. In other words, the work must exist in more than a mere transient state. For instance, books, photographs, word processor documents, and even data temporarily stored on a computer’s RAM can be considered fixed in a tangible medium.

    What Copyright Does Not Protect


    Copyright does not protect facts, ideas and concepts, useful articles, or methods and processes. Facts include such things as news, names in a phonebook or history. Ideas are the underlying concepts of an expression. Useful articles are objects with a utilitarian function. Methods and processes are particular ways to go about an activity or to achieve a result. While a copyright will protect a work that contains these elements, such elements are not copyrightable. This becomes highly relevant when an infringement claim is brought. An infringement only occurs when a copyrightable element of a work has been copied.

    Facts preexist in the world at large. Because of their preexistence, they are devoid of the originality required for a copyright. It is possible to copyright one’s expression of facts, such as the words chosen to describe an historic event, but copyright protections will not bar others from writing about the same historic event. Historic or background imagery, such as English Knights or Native Americans, are also not copyrightable elements of a work.

    It is also possible to copyright an original arrangement, selection, and coordination of facts. The underlying facts, however, are not copyrightable. For instance, a list of local businesses selected, categorized, and arranged to cater to the tastes and interests of a specific community is likely copyrightable as far as the specific selection, categorization, and arrangement, but the underlying facts such as the names or addresses of the businesses are not.

    An idea is an abstract concept that underlies an original expression. Ideas are abstract and, like facts, are considered to preexist independently of an expression, and therefore not copyrightable. Archetypes and tropes are considered abstract ideas (e.g. a protective father, or a lovable rogue), as are general plot lines. For instance the following plot is fairly abstract: an unsuspecting boy is thrust from his home by an unforeseen event; he goes on an adventure and discovers he has a special power or past; his adventure leads him to the villain who caused the event that thrust him from his home; he confronts and defeats the villain. Below a certain level of abstraction, however, an idea becomes a copyrightable expression. For instance, a less abstract version of the above plot could be the story of Luke Skywalker in Star Wars, Harry Potter in the eponymous book series, or any number of similar tales. There is no bright line that determines when an abstract idea becomes an original expression, but as the number of ways to express an idea approaches one, the likelihood of it being a copyright protected expression increases.

    Useful articles may not be copyrighted. Generally, only the features that may be separated from the utilitarian features of a useful article are subject to copyright protection. Ornate carvings on a Rococo inspired buffet table are likely copyrightable, but its flat top and four legs are not. Even though there are creative and original decisions required to design a useful article, a decision that must be made as a matter of functionality is not considered an original expression. For example, the combination of height, width, and length of a table, on its own, is not a copyrightable expression; a table must have all three dimensions to be useable as a table. A generally good guide is that any feature of a useful article that could be ‘scraped off’ without the article losing functionality is a copyrightable feature.

    Methods and processes are also not subject to copyright protection. With facts, only the words chosen to describe a method or process are copyrightable. With useful articles, where the process or method described requires a tangible expression, only those parts of the tangible expression that are not necessary to carry out the method or process are copyrightable. For instance, there must be 9 boxes in a grid to play tic-tac-toe, so such a grid is likely not a copyrightable element or expression of the process for playing tic-tac-toe; however, placing decorative patterns around the edge of the tic-tac-toe grid would be copyrightable because it is not necessary to play the game. Where there are only a very few ways to express a process or method, copyrights are said to be “thin,” i.e. only an exact copy of a copyrighted expression of the method or process will rise to an infringement, if at all. An example of this could be a book on accounting that contains an example of a form described by the accounting method; the form may only have a thin copyright, if at all.
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