On first thought, copyright protection may seem fairly easy to understand. Put simply, creative works can receive protection from being copied. But copyright law has many nuances that are important to consider when seeking federal copyright protection. The first of these is determining whether and what aspects of a work can be protected.
Copyright protects “original works of authorship fixed in any tangible medium of expression.”[1] Fixation means that it is somehow captured in a way that can be perceived by others. For example, if you make up a song and sing it in your shower, you have not fixed the work in a tangible medium. However, if you write down the lyrics or notes to the song, or record yourself singing it, you have met the fixation requirement. The originality requirement demands both independent creation by the author and at least some minimal degree of creativity. Independent creation is fairly self-explanatory — you must have created the work. As for creativity, the more creative the work is, the stronger your claim to copyright protection will be. But a very low level of creativity in a work is all that is required for copyright protection — you do not have to be a master of high art to receive protection.
One of the first things we typically tell clients interested in copyright protection is that ideas cannot be protected — only your individual expression of those ideas can be protected. The Copyright Act makes it clear that ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries cannot receive copyright protection, “regardless of the form in which [they are] described, explained, illustrated, or embodied in such work.”[2] The doctrine of the idea/expression dichotomy provides that ideas must be separated out from expression, and the expression is the only protectable part of the work.
Creative Content in Popular Media
Though the line between ideas and expression can at times be murky in works with a lower level of creativity, many instances regarding creative content are evident. For example, copyright would not protect the idea for a story about an innocent man who is sent to prison and later escapes. However, copyright does protect the specific expression of that story idea as Stephen King wrote it in the short story “Rita Hayworth and the Shawshank Redemption” and as it was later depicted in the acclaimed film The Shawshank Redemption. This extends to facts as well. While the compilation of information that comprises the non-fiction book The Devil in the White City receives protection as a literary work, the fascinating individual facts that author Erik Larson uncovered about the 1893 World’s Fair in Chicago and serial killer H.H. Holmes do not, by themselves, receive copyright protection. This keeps any one person from owning ideas and facts so that knowledge can spread and such ideas and facts can form the basis for other original works.
The Copyright Act defines numerous examples of original works of authorship, including literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Though this list specifically details the categories of registrable works, this is not a complete list of works that can receive copyright protection.
Notably, while the Copyright Act does not specifically refer to works associated with computers and the Internet, a number of computerized creations constitute original works. For example, copyright protects the computer code written for software for a video game like Pac-Man as well as the creative visual aspects of the video game displayed on screen during game play. Copyright also protects works in digital form, such as digital photographs, YouTube videos, and songs in mp3 format.
Additionally, the types of works described above can be combined in various ways to create copyrightable works. Take websites for example. A website typically contains a variety of elements such as articles and other written content, photographs, or videos, and the webpage design itself, not to mention underlying coding and software. While each piece may be eligible to receive federal copyright protection individually, certain circumstances will allow for multiple pieces to receive combined protection or for registration of the website as a whole. Developing the right strategy for protection of works individually or combined together will depend on a variety of factors, including authorship, potential damages, and budgetary considerations.
So what kind of works remain uncopyrightable?
A range of works have been deemed uncopyrightable, typically because of their primarily factual nature or the limited ways to express them. When an idea and its expression are inseparable, one person cannot claim an exclusive copyright in the expression of that idea (often called the “Merger Doctrine”). For example, calendars themselves are not copyrightable because the calendar year can only be expressed in limited ways that are useful. However, the photographs used for a calendar can be protected. Other works found to have little to no protectability include phone books (comprised of facts and utility requires them to be alphabetized in some fashion), sweepstakes agreements (similar rules can only be stated in a few ways), and recipes (the identification of required ingredients is both a statement of facts and a functional process/procedure).
Sometimes simply tweaking a work may make it protectable. For example, you may be able to increase protection for a recipe by incorporating original images of the final dish, writing text to introduce it, and/or including it within a larger work. Additionally, any works deemed uncopyrightable may be able to gain protection through other channels like trademark or trade dress. While you are in the process of creating copyrightable material that you hope to monetize, it is worthwhile to consult an intellectual property attorney to develop strategies to increase your work’s protectability from the start. Sorting through these often complex issues early on in the process can secure your rights in your work and ensure viable remedies if someone else infringes on your copyrighted material. — Rina Van Orden, Esq.
