I AM THE BLAWG: THE THREE MAIN REQUIREMENTS OF COPYRIGHT PROTECTION
After last week’s introduction, I’m going to use this column to go through the the three main requirements of copyright protection in a little more detail. For those of you looking ahead, the next few columns will have nothing to do with copyright at all.
Requirement number one is that the work must be an item that can be copyrightable. Though there are many different types of works, not everything can receive copyright protection. Copyright will only be available to original works of authorship. The US Code provides several examples of items that can be protected, such as
- Literary Works (books, articles, class notes, emails)
- Pictorial, Graphic & Sculptural works (Photographs, music videos, movies)
- Musical works & sound recordings (full albums, individual songs)
Also, while facts are not copyrightable, compilations of facts generally are, but only to the extent that the author has infused it with his creativity. Where his creativity ends, so, too, does the copyright.
While this list is broad, many items are not protected, such as procedures, processes, systems, ideas, words or short phrases, and US government works. Protection might be available under trademark or patent law for these, but not under copyright.
Requirement number two is that each item must be independently created. If two people author the same work and have arrived at that work independently, both will be afforded copyright protection for their work. Granted, this doesn’t happen that often.
The independent creation requirement leaves out several concepts that you might consider important to receiving copyright protection, such as:
- Novelty — You can effectively copy something if you arrived at it independently. This is to protect authors who have created the same thing. If, somehow, somebody who had never heard Reign in Blood, and then wrote and produced it for themselves, they would have protection for that work. Now, would it be commercially viable? Probably not, and the copyright protection would be of limited value here, but it would be protected nonetheless.
- Artistic Measure — This protection is granted no matter what the underlying artistic measure. Why? It is much easier to grant protection to all works rather than having some stodgy old judge unrelated to any artistic scene trying to determine what “art” is. So, sadly, Brokencyde can still have copyright protection for anything they dump on the market.
- Noncommercial — There is no limit on the amount of money you can make off of the copyrighted material. One of the ideas underlying copyright is protection for authors for their works. If artists can’t profit from their creations, why bother creating works in the first place?
- Intent to be original — If you are creating a copy, but unintentionally create something different, this work will be protected because it is a distinguishable variation. Suppose you are copying a sketch, but are startled and add an errant line. You will have copyright protection in that work. However, your protection will be limited to the amount that you added to the underlying copyrighted work.
Generally, these items have been left out to make take the guess work out of granting copyright protection.
The third requirement is that the work be fixed in a “tangible medium of expression.” The author must reduce the idea to a fixed form that can be shared with others, and that form must be stable and permanent. If you can’t reproduce it, you can’t get copyright protection. The fixation is sufficient if the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
There is no required form for fixation. If you need to write the idea down with a sharpie on a pad, that will work. If you have the time to type it up, so much the better. If you have to carve it into stone because that is what you have available, then that will work as well.
In the music world, this will largely mean either writing down the music in some form, either musical notation or tablature, or making an audio recording of the idea. Live performances by themselves will not meet this test, even if regularly performed. A live broadcast, on the other hand, is copyrightable because of the decisions that are made in its production as well as being fixed in video tape.
Up next week: Why you can practice your karate kicks in the pit.
Antonin Skullia, Esq. is licensed by the one of the many fine states of this great union as an attorney and counsellor-at-law. While he is a licensed attorney, nothing in this article should be construed as specific legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only.
Reading this article, replying to its posts, or any other interaction on this site does not create an attorney-client relationship between you and the author. No attorney-client relationship has been created, nor should one be implied. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
If you have specific issues you would like to see discussed in future columns, you may contact Antonin at antonin [dot] skullia [dot] esq [at] gmail [dot] com. However, Antonin will not be able to respond to any requests for specific legal advice.