WHAT IS A COPYRIGHT?
A copyright is a set or bundle of rights in literary‚ musical‚ choreographic‚ or artistic work of art including the exclusive rights to copy‚ distribute‚ create derivatives‚ perform‚ or display the work. See Copyright Law. To obtain a copyright‚ an author must create an original work of authorship fixed in a tangible medium of expression from which it can be perceived‚ reproduced‚ or communicated. Once the work is fixed in a tangible medium of expression‚ it is eligible for copyright protection. While registration of a copyright offers several advantages‚ it is not required for copyright protection.
Original Work of Authorship
For a work to be the subject of a valid US Copyright‚ the work must be original. The originality element requires independent creation with a minimal degree or modicum of creativity. In other words‚ the amount of creativity must be non-trivial. For example‚ creating a phone book that simply lists names and phone numbers would probably not be eligible for protection.
While a minimum level of creativity is required‚ neither the courts nor the copyright office judge artistic merit. Despite criticism that an original creation is not art or does not add anything to the artistic community‚ a work may still achieve copyright protection if it meets the requirements of copyright protection‚ regardless of its artistic merit.
Fixed in a Tangible Medium of Expression
An original work must also be fixed in a tangible medium of expression from which it can be perceived‚ reproduced‚ or otherwise communicated. This element to copyright protection requires that an author actually embody their work in some permanent or non-transitory medium. If the creation is expressed only transitorily or ephemerally‚ it will not qualify for copyright protection. For example‚ if a jazz musician is improvising music in a live performance‚ the notes he is playing may not be the subject of a copyright because they are not fixed. In contrast‚ if the performance were recorded or if the musician later transcribed his improvised notes into sheet music‚ his improvised melody could become the subject of a copyright.
Fixation is a special problem in the digital world where the Random Access Memory (RAM) of computers is constantly copying and deleting information. While a computer’s RAM creates a copy of information‚ that copy is by nature transitory and non-permanent. However‚ the modern trend is to treat temporary copying into the RAM of a computer as fixation. This is because such information has been reproduced from the author’s mind and into the computer’s memory‚ even if temporary.
Copyrightable Subject Matter
In addition to being original and fixed in a tangible medium of expression‚ the subject matter of a work must be eligible for copyright protection. The following types of works are considered copyrightable subject matter: musical works‚ dramatic works‚ pantomimes and choreographic works‚ pictorial works‚ graphic works‚ sculptural works‚ motion pictures‚ other audiovisual works‚ sound recordings‚ and architectural works. In contrast‚ the following creations are considered to be outside of the bounds of copyrightable subject matter and ineligible for copyright protection: ideas‚ procedures‚ processes‚ systems‚ methods‚ concepts‚ principles‚ and discoveries. Some creations ineligible for copyright protection may be protectable under Patent Law.
One of the most important concepts in copyright law is the idea/expression dichotomy. While ideas themselves are not eligible for protection‚ once those ideas are expressed in fixed works of authorship‚ they may be the subject of valid copyrights. For instance‚ the idea of a movie about a boxer could not be the subject of a copyright. However‚ if that idea were expressed in a script with an original plot line‚ than that expression could be protected.
In some cases‚ there may only be one way to express an idea. When this is the case‚ the idea and the expression are said to merge as little to no creativity is required in order to express the idea. When there is only one or a finite number of ways to express an idea‚ that expression is not eligible for copyright protection. For example‚ an expression of the rules of a simple sweepstakes contest that could not be expressed in any other manner could may not be eligible for copyright protection.