Zachary W. Lombardo, Esq.
Part 1 of a series on Copyright.
What is Copyright?
Copyright is an intellectual property right that aims to protect a creator’s rights in his or her original work. This means copyright is a property right that protects intangible property, or property that doesn’t exist in the physical world. An example of physical property is a car. Intellectual property, on the other hand, is a painting of a car. Interestingly, intellectual property is not the physical canvass and paint that make up the painting, but the actual non-physical art, the expression. This, as you might imagine, creates all sorts of interesting possibilities and questions which are explored, if only superficially, in this blog post.
Where does Copyright come from?
Now that we have some sense of what copyright is, where does it come from? Copyright law is federal law. It is rooted in the U.S. Constitution and exists, for the most part, in U.S. statute.
The exact letter of the law is
“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
17 U.S.C. § 102, available HERE.
What can I copyright?
You can copyright original works of authorship that are fixed. What does that mean? Read on!
What does it mean to be original?
The first requirement is that the work must be original. Among other things, this means that the work cannot already exist. One way to check if a work already exists is to search the copyright database maintained by the U.S. Copyright Office, HERE. The database, however, only goes back to 1978, and it does not include any works that are not registered. To learn more about how long copyright protection lasts and what registration means, please read Part 2 of this series “What are the copyright rights? And, do I need to register my copyright?”.
What is a work of authorship?
The second requirement is that the work of art must be a work of authorship.
The law goes on to give examples of what sort of things are works of authorship. HERE are some examples provided by the U.S. Copyright Office:
- 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, which are works that result from the fixation of a series of musical, spoken, or other sounds
- Architectural works
These are all broad categories, and to better understand them, here are some real-world examples:
The Da Vinci Code
Dan Brown’s best seller, The Da Vinci Code, is copyrighted as a literary work. That book, however, was made into a movie, and that movie was also copyrighted as a motion picture.
Candle in the Wind
Elton John’s song, Candle in the Wind, is copyrighted as a musical work, with accompanying words.
What does it mean for the work to be fixed?
The third requirement is that the work of art must be fixed.
Basically, this means that the work of art must be able to be perceived. For the Da Vinci Code, the fixed form was a book as well as a movie. For Candle in the Wind, the fixed form is a master recording. In the digital world, fixed includes digital files so long as the file can, with the use of a computer, be perceived. So, instead of an actual movie reel, the Da Vinci code movie could be fixed when the final digital movie file is generated.
What is not protected?
What about things that cannot be protected? HERE is what the U.S. Copyright Office says:
- Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
- Works that are not fixed in a tangible form (such as choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)
- Titles, names, short phrases, and slogans
- Familiar symbols or designs
- Mere variations of typographic ornamentation, lettering, or coloring
- Mere listings of ingredients or contents
For a more thorough explanation on what cannot be copyrighted, take a look at the U.S. Copyright Circular 33 HERE.
A large theme in the types of works that cannot be copyrighted are those that do not yet exist. If you have an idea for a song about a beach town, and you even have an idea of what the melody will sound like and what key the song will be in, you still do not have enough for that to be copyrightable. The big limiting factor in what you can copyright is what exists. The art must exist.
Another requirement is that it must be art. Copyright is not for discoveries. It is also not for names and slogans. Names and slogans maybe protectible, but through trademark, not copyright.
In the end, making the determination of what you can copyright is fact dependent. To learn more about if something can be copyrighted, you should reach out to a knowledgeable and experienced intellectual property lawyer.
Zachary W. Lombardo, Esq., and Joseph M. W. Coleman, Esq., at Woodward, Pires & Lombardo have experience in copyright law matters. If you find yourself needing assistance in this area, please contact a lawyer knowledgeable in copyright law to discuss your matter.
To learn more about how long copyright protection lasts and what registration means, please read Part 2 of this series “What are the copyright rights? And, do I need to register my copyright?” (forthcoming)