Introduction to Copyright Law: Creation, Protection and Exclusions

By Marc Whitfield

Intellectual Property or IP generally consists of ideas and inventions that have been converted or developed into artistic expressions and/or commercial applications. Intellectual Property Law or IP Law refers to a broad body of laws designed to protect intellectual property. IP Law primarily consists of patent law, trademark law, copyright law and trade secrets law.

Copyright Law Basics

Unlike trademarks, which are governed by both federal and state trademark laws, Copyright law is governed exclusively by federal law, namely the Copyright Act of 1976, which is set forth in Title 17 of the United States Code (the Copyright Act). There are no state copyright laws. Federal copyright law and the constitutional provision upon which it is based (the copyright clause) have a two-fold purpose that involves balancing the competing interests of: (1) promoting the free circulation of knowledge and artistic creations for the common good; and, at the same time, (2) protecting and rewarding authors that share their knowledge and creative efforts in order to assure the continued creation and sharing of that knowledge and artistry.

Required Elements of Copyright

Three essential elements are required to qualify for copyright: (i) the work must be an original creation (i.e., not copied), (ii) the work must contain at least a minimal amount of creativity (i.e., not purely functional or factual); and (iii) fixation (i.e., the work must be contained within some tangible format capable of preserving the work).

What is a copyright? Copyright is a statutorily created monopoly that reserves certain legal rights in favor of the author (or owner of the copyright if the author has sold or otherwise assigned the copyright), which generally means that only the author can financially benefit from the commercial exploitation of the work that the author has created. The principal legal rights reserved to the author include the exclusive right to: (i) reproduce the copyrighted work; (ii) prepare derivative works based upon the copyrighted work; (iii) distribute copies of the copyrighted work to the public; (iv) perform the copyrighted work; and (v) display the copyrighted work publicly.

Copyright Protection – Extent and Rights

Works Susceptible to Copyright Protection: Only “original works of authorship” are protected under the Copyright Act. Such works include, but are not limited to: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings, and (8) architectural works.

To account for the fact that our rapidly-evolving technology often changes how authors choose to create and preserve their particular creations, the Copyright Act provides that copyright protection exists for original works “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.”

A work is “fixed” in a tangible medium of expression when the work has been preserved in a sufficiently permanent or stable manner to permit it to be perceived, reproduced, or otherwise communicated. An unwritten and unrecorded speech is an example of a creative work that would not be eligible for copyright protection since the speech has not been “fixed” or recorded to any form of media from which it can be re-played.

What Is Excluded From Copyright Protection?

The Copyright Act specifically clarifies in 17 U.S.C § 102(b):

  • “In no case 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.”

In short, copyright protects only the means or manner in which the idea is fixed or expressed. Unlike a patent, a copyright gives no exclusive right to the science, processes or art disclosed; protection is given only to the means of reducing an idea to practice – not the idea itself. Therefore, copyright law generally does not prohibit a third party from copying the idea or creating an original way to creatively express the same idea in a different fashion.

In addition to the underlying facts or discovery itself, copyright also does NOT extend to (i) titles, names and short slogans, (ii) symbols, (iii) mere listings of ingredients, (iv) works consisting entirely of information that is common property and containing no original authorship, (such as standard calendars, height and weight charts, tape measures and lists or tables taken from public documents or other common sources); (v) mathematical principles; formulas; algorithms; or (vi) any other sort of concept, process, or method of operation.

When and How is a Copyright Created

A copyright arises from the moment the work is created and preserved in a media from which it can be accessed. For example, a copyright in a poem would be created at the moment the author finishes writing it down on paper. Similar to trademark law, registration of a copyright is not required for a valid copyright. However, copyright registration is required in order to file a lawsuit against an infringer for copyright infringement.

For additional helpful information on copyright law, you can review the FAQ’s provided by the United Copyright Office.

If you need legal assistance regarding copyright laws, please contact Marc Whitfield to schedule a consultation.