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

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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 protected 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.[1] 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 & Creativity

Originality is a key ingredient to the creation of a copyrightable work that’s eligible for protection. The U.S. Supreme Court addressed the originality and creativity requirements in the landmark case Feist Publications, Inc. v. Rural Telephone Service Co., Inc.[2] 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.”[3]

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.”[4] Therefore, “facts are never original” and copyright law does not extend protections to facts.[5] 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.[6] 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 US Copyright Office recently had to issue a ruling[7] 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! [8])  

Ideas & Non-Fixed Expressions

Another key ingredient to a copyright is making sure the work is fixed in a tangible medium of expression.[9] 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.[10]

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.”[11] 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.[12]

 An example of a universal concept or theme that is not eligible for copyright protection arose from an early twentieth 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.[13]

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.[14] This is because those types of works do not meet the “minimum amount of authorship” necessary. Incidentally, 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.[15] 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 Factsheets which offer further insights divided by specific topics and can be accessed for free from its website, copyright.gov/circs/.


[1] 17 U.S.C. § 102.

[2] 499 U.S. 340 (1991)

[3] Id. at 345 (citations omitted).

[4] Id. at 347 (internal citation omitted).

[5] Id. at 356.

[6] International News Service v. Associated Press, 248 U.S. 215, 234 (1918).

[7] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2014).

[8] See Domonoske, Camila. “Monkey Can't Own Copyright To His Selfie, Federal Judge Says,” NPR, January 7, 2016. Available at: http://www.npr.org/sections/thetwo-way/2016/01/07/462245189/federal-judge-says-monkey-cant-own-copyright-to-his-selfie.

[9] 17 U.S.C. § 102(a).

[10] See H.R. REP. NO. 94-1476, at 52, 131(1976), reprinted in 1976 U.S.C.C.A.N. at 5747.

[11] 17 U.S.C. § 102(b).

[12] Compendium (Third) § 313.3(A).

[13]  See Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930).

[14] U.S. Copyright Office, Circular 34 (2015).

[15] Hodak, Brittany. “Taylor Swift's New Trademarks: What They Mean (And Don't Mean) For #Swifties,” Forbes, March 15, 2017. Available at: https://www.forbes.com/sites/brittanyhodak/2017/03/15/taylor-swifts-new-trademarks-what-they-mean-and-dont-mean-for-swifties/.