Copyright Protection: What Can Be Protected and What Cannot be Protected

Copyright: What's Protectable & What's Not?

Copyright laws seek to prevent unauthorized copying of works of

authorship and to protect the fruits of the labor undertaken in developing such works.

We will present an overview of copyright law, discussing questions such as:

What is a copyright? How are works made protectable by copyright law?

And what do copyright laws protect and not protect?

What is a copyright?

Copyright is one of many intellectual property rights.

Intellectual property rights are rights protecting property interests, even

though they are not tangible like a laptop or house.

Other intellectual property rights include trademarks, patents, and trade secrets.

U.S. copyright laws are codified in Title 17 of the United States Code.

In the U.S., registration of a work is not required to have a valid copyright--

just producing and committing something to a tangible form

automatically gives you the copyrights to that creation.

However, federal registration of a work with the U.S. Copyright Office, part

of the Library of Congress, provides additional options and protections to the work's author.

A copyright is a legally recognized property right protecting creative,

original works that are fixed in a tangible medium of expression capable

of being perceived, reproduced, or otherwise communicated.

For instance, a songwriter that writes a song can use the Notes app on an

iPhone to type or fix the lyrics into a format that is tangible and easily reproduced.

Otherwise, the lyrics are just an idea in someone's mind and not easily perceived or reproduced.

Likewise, an oil painter fixes her work onto a canvas--a common medium

of expression for artists--the same way that a 3D animator might fix his

short film into a digital file format, another medium that falls within the scope of the Copyright Act.

How are works made protectable by copyright law?

Original works in creativity: originality is a key ingredient to the creation

of a copyrightable work that's eligible for protection.

The U.S. Supreme Court addresses the originality and creativity

requirements in the landmark case, Feist Publications Inc. v. Rural Telephone Service Company Inc.

In that case, the court stated that to qualify for copyright protection, a work must be original to the author.

Continuing, the court emphasized that the work must be independently

created by the author, and it must possess at least some minimal degree of creativity.

In Feist, Rural Telephone Service Company Inc., a telephone company

that created a phone book, sued Feist Publications Inc., a company

specializing in the creation of phone books, for copying entries from Rural's phone book.

At the time, copyright law protected works under the "sweat of the brow"

doctrine, which gave copyright protection based on the time and effort

put into the creation of a work, not necessarily based on whether it was original.

The Supreme Court held in favor of Feist Publications, saying no one may

claim originality as to facts because facts do not owe their origin to an act of authorship.

Therefore, facts are never original, and copyright law does not extend protections to facts.

The court went on to declare that the level of creativity required for

copyright is low and that a work must be original to and independently created by the author.

Works that contain factual information may be registered so long as they

have a level of creativity or original authorship that creates elements eligible for registration.

For example, a newspaper or magazine article may be eligible for

copyright protections, but the protections do not extend to any news

elements within the article because the information contained within is

merely information and within the public domain.

Therefore, once an article or newsworthy event is published by the

original publication, other publications may write their own articles or

methods of conveying the same newsworthy information without infringing upon the original story.

In an interesting sidelight, the U.S. Copyright Office recently had to issue

a ruling that a copyrightable work needs to have been created by a

human being to be protected, in response to an attempt to copyright selfies taken by a monkey.

Ideas and Non-Fixed Expressions.

Another key ingredient to a copyright is making sure the work is fixed in a tangible medium of expression.

If a work is not fixed, it is therefore not protectable under the Copyright Act.

Examples of works that have not been fixed include choreography that

has never been filmed or notated, an extemporaneous speech that has

not been filmed or recorded, a work communicated solely through

conversation, or a live broadcast that has not been filmed, recorded, written, or transcribed.

A dramatic sketch or musical composition improvised or developed from

memory that has not been filmed, recorded, or transcribed.

The Copyright Act specifically targets ideas when providing guidance on exceptions to the protections it offers.

In no case, states Section 102(b), does copyright protection for an

original work of authorship extend to any idea, procedure, process,

system, method of operation, concept, principle, or discovery, regardless

of the form in which it is described, explained, illustrated, or embodied in such work.

Examples of such works that are not subject to copyright protection

include the idea or concept for a work of authorship, the idea for a

character, business operations or procedures, mathematical principles, formulas, algorithms, or equations.

An example of a universal concept or theme that is not eligible for

copyright protection arose from an early 20th-century case.

A court held that copyright law does not protect a work created by an

author detailing a quarrel between a Jewish father and an Irish father, the

marriage of their children, the birth of grandchildren, and a reconciliation.

This is because the nature of the creative work incorporates universal concepts and universal themes of a story.

Due to the nature of Section 102(b), it's important for creators in the

entertainment and media industries to understand that sharing an idea

for a movie screenplay or television series with another person or

company--especially when it's not a finalized or finished product--can

make it more difficult to properly protect the work using copyright laws.

A related concept that's important to understand is that titles, names,

and short phrases are not eligible for copyright protection.

This is because those types of works do not meet the minimum amount of authorship necessary.

Currently, trademark law, codified in the U.S. under the Lanham Act, also

does not generally afford protections to titles either.

Trademark protections may be available for series titles, brand and trade

names, slogans or phrases, but not for individual books or song titles.

Taylor Swift made headlines with registration filings for a variety of

trademarks surrounding her 2014 album 1989 and its subsequent world tour.

Whether those filings would hold up in court has not yet been tested.

There are a variety of business decisions to consider when it comes to

protecting intellectual property assets.

Therefore, a proper understanding of the similarities and differences

between different types of intellectual property is important.

For more information about the registration and various protections

available to works under the Copyright Act, the U.S. Copyright Office

provides a free resource called the Compendium of U.S. Copyright Office

Practices, available on the office website copyright.gov.

Additionally, the Office releases circulars and fact sheets, which offer

further insights divided by specific topics and can be accessed for free

from its website: copyright.gov/circs/.