What Are Copyrights and What Can You Copyright?

What are Copyrights?

Copyright law gives people a way to protect the tangible expressions of their creative ideas, such as a writing (a blog, essay, book), a canvas, a sound recording, a photograph, a video game, and so forth. It also provides a set of rules that determine when a person can claim legal ownership of his or her creative ideas.

Ultimately, the goal of copyright law is to encourage and promote creative output in the United Stated by rewarding authors and creators with special legal rights they can leverage in the marketplace for commercial gain.

What Can You Copyright?

The law states that original works of authorship which are fixed in a tangible medium are eligible for copyright protection. What does this really mean?

Original

The U.S. Supreme Court explains, “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 111 S. Ct. 1282, 1287, 113 L. Ed. 2d 358 (1991).

A work is original then if it:

1. Exhibits a basic level of creativity and
2. Is independently created

Imposing the minimal creativity requirement insures that information alone – without something more – cannot be protected by copyright. As the adage goes, facts are not copyrightable, but the compilation of facts may be. For example, in a directory listing, the raw data (i.e., the names and numbers of those included in the directory) is not copyrightable, but the creative aspects of the directory may be, such as the order and manner in which the names and numbers are presented.

As this example shows, the legal standard for creativity is very very low. It is often stated that a work need only have a mere “spark” of creative expression to meet the minimal degree of creativity threshold. Note also that whether or not a work exhibits a “basic level of creativity” is determined objectively. Fortunately, the law doesn’t have a preference and avoids passing any value judgment on creative works!

In addition to being creative, an original work must be independently created. This does not mean that the work must be new or novel, or that you have to create it alone. It simply means that the work is not a copy of something else. That is to say, it cannot be dependent upon or borrow from another work.

WORK OF AUTHORSHIP

A work of authorship is the product of one’s creative expression that has matured from a mere idea into something we can perceive in the physical world. Literature, artwork, music, dramatic productions, motion pictures, and even architectural works such as constructed buildings, drawings, plans, and models are all examples of works of authorship. They are all tangible embodiments of creative ideas. As such, the idea for a book, a melody, a play, a film, or even new building is not legally protectable until it can actually be perceived by others.

Although we commonly consider an author someone who pens an article or writes a book, for copyright purposes, we consider all creators – painters, musicians, producers, engineers, and the like – to be authors.

FIXED IN A TANGIBLE MEDIUM

Finally, to be protectable under the copyright law, an original (as you now understand this term) work of authorship must also meet what is called the “fixation” requirement. Fixing, or presenting, a creative work in a tangible form transforms an original idea into a legally protectable work. Without a physical manifestation, it is impossible to identify an idea, describe it, determine if it’s truly “original,” or even assign ownership to it. Ergo, absent fixation, a creative work is nothing more than an idea taking residence in the author’s mind. And contrary to popular belief, you cannot copyright ideas. You can only copyright the unique expression of those ideas.

Practically speaking, you must express your original ideas in some physical way, or else the law will not offer protection. The law, for example, provides no copyright protection for an original idea for a children’s story; but it does provide protection for the story once it has been written down. The written story – probably a book — is the tangible expression of the idea of the story.

Similarly, a musician who plays a live concert must also “fix” the performance by simultaneously recording it in order to meet the fixation requirement. This is why video recording devices – nowadays most mobile devices – are prohibited at concerts! The artist needs to control who creates the “fixed” copy of the performance in order to control the legal rights.

The Bottom Line

The law will provide legal protection for your creative output provided it meets these three requirements:

1. It must be original.
2. It must be a work of authorship (not just an idea).
3. It must be presented in a tangible medium.

Your brilliance is only brilliant when others can see it!