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How to Know if Your Work is Copyrightable


Copyright protection has become common knowledge through the publicity of lawsuits featuring artists from Pharrell to Led Zeppelin.

Copyright protection originates from the U.S. Constitution “Copyright Clause” located in Article 1, Section 8, Clause 8 which states, “  To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  As stated, the primary objective of the Copyright Act is the promotion of the arts and sciences by motivating authors and inventors through economic gain.

For a short time, artists and inventors have exclusive rights to their creative works before they enter the public sphere.  This protection is offered to award innovation and prevent others from misappropriating an author’s hard-earned creation. (Such misappropriation, it is believed, could deter future author’s from creating new works.) However, this protection is limited in years (or decades), as the United States seeks to advance the arts and sciences through collaboration and building on the works of others. Thus, the Copyright Act offers protection to authors, but also allows future generations to build on work currently being done.

In order for your work to qualify for federal statutory copyright protection it must me an original work of authorship, fixed in any tangible medium of expression under 17 U.S.C. § 102(a).  Broken down into elements, an original work must 1) be “fixed”, 2) be “original” and it must also 3) be an expression.

1. Fixed

Federal copyright law protects works that are “fixed” in a “tangible medium of expression”, meaning there is a physical copy or phonorecord for sounds.  A phonorecord is a material object in which sounds are fixed and from which sounds can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.  An example of a phonorecord includes an MP3 which you download or play on your iPhone.

Federal copyright protection automatically attaches to a work once it is “fixed” in a tangible medium of expression, by or under the authority of the author.[1]  As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.[2]  An author’s copyright essentially arises at the moment of creation of their work. (Exceptions will apply, such as works for hire, or those created under the direction of a record label or governmental agency.)

2. Original

Not only must a work be “fixed”, but it has to be original for copyright protection.  Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.[3]  The constitutional grant of power to Congress to create a system of copyright protection is limited to the protection of “authors”.  Implicit in the word “authors” is the requirement that the expression be that of the author and not a copy of another author’s expression.  This is the basis for the originality requirement which is codified in 17 U.S.C. § 102(a).

3. Expression

Copyright protects the expression of ideas, not the ideas themselves.  Ideas cannot be protected by copyright.  Facts and ideas are in the public domain, meaning free for exploitation, to ensure the progress of science and the useful arts.[4]  Since facts and ideas are not copyrightable, they must be expressed in a way that is fixed and original in order to be copyrightable.

If you have a creative work that is a fixed, original expression then you can submit an application for a copyright with the U.S. Copyright Office to protect your work. Click Here to learn about all the ways Intellectual Property can protect your inventions and innovations.

[1] 17 U.S.C. § 101

[2] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).

[3] Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 345 (1991).

[4] Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008).


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