What May Be Copyrighted?

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What May Be Copyrighted?

Jun 17, 2015

What May Be Copyrighted

There are two underlying requirements for a work to be protected by United States copyright law. The work must be (1) Original, and it must be (2) Fixed.

Fixation has its own three requirements. First, the work must be embodied in a copy or phonorecord. An example of this would be a printed photograph or a digital record of a song. Second, a work must be fixed by the authority of the author (e.g., actually snapping the photograph). Finally, the work must be permanently fixed for a long enough duration to be perceived or reproduced. A beach sandcastle probably would not meet the duration requirement, however a photo of the sandcastle would.

Fixation requires that a choreographic work either be recorded or accompanied by detailed drawings of the act. Similarly, musical works are typically fixed by a recording and sheet music. An interesting hypothetical would be if during a live concert, a band spontaneously played a new song that had never been recorded. The song, as it exists in that moment, would not be protected by copyright for lack of fixation.

The second primary requirement for copyright protection is the work must be original. That is, it must be independently created as opposed to being a copy of something else. The work must also possess at least minimal creativity. Under what is known as the "principle of aesthetic non-discrimination," courts have traditionally set the bar very low for authors to meet the requisite creativity.

Based on these requirements, one cannot copyright an idea. While an idea may be original, it is not fixed. Facts are also not copyrightable for a lack of originality. It is the expression of facts and ideas that holds the copyright. Where there exists only a very limited number of ways to express an idea, the idea is said to "merge" with the expression and thus, there is no copyright protection. An example of this is the rulebook for the National Basketball Association (NBA). Because there is only one way to express that specific idea, the idea merges with the expression and is not protected by copyright law.

Finally, a peripheral requirement for a work to be protected is its author must either be a United States citizen or, for foreign authors, the work must first be published in the United States.

Next week we will discuss the copyrightability of literary works.

Gary Brophy and Janise Marvin made substantial contributions to this post.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. His class covers First Amendment issues as well as copyright, defamation and privacy.

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