Copyrightable Subject Matter

Copyright protection automatically applies to "original works of authorship" that are "fixed in a tangible medium of expression." The definition is less complicated than it sounds. If you create a blog post, podcast, or article, your work is covered by copyright the instant it is created in a tangible form, such as on paper, in a blog post, email, or video. You do not need to do anything more, such as signing or filing any papers or provide specific notice to the world that the work is covered by copyright. (You may however wish to provide copyright notice and register your copyright; see the section on Copyright Registration and Notice for more information.) Assuming it meets the requirements for protection, a work is automatically copyrighted in the U.S. and in over 160 other countries from the moment of its creation.

Original Works of Authorship

The level of creativity required for a work to be "original" is extremely low. A work satisfies this requirement as long as it possesses some creative spark, "no matter how crude, humble or obvious it might be." Feist Publ'ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). A work that originates from the author and contains any level of creative expression will satisfy the originality requirement. In the Feist case, the Supreme Court held that listing names alphabetically in a phone book is not creative; almost anything more creative than that probably qualifies.

Sometimes, a creative work will have both original and unoriginal elements. In that case, the owner of the copyright to the work may assert rights over the original elements, but not the unoriginal elements. For example, a hip-hop music publisher recently sued the famous rapper, 50 Cent, claiming that his popular song, "In Da Club," infringed the publisher's copyright in a song called "It's Your Birthday" (written by another hip-hop artist named Luther Campbell). Lil' Joe Wein Music, Inc. v. Jackson, No. 06-16342 (11th Cir. 2007). The lyrics to "It's Your Birthday" include the phrase "Go [name], it's your birthday" with various proper names used in succession. 50 Cent's "In Da Club" also includes a section where he sings "Go Shorty, it's your birthday." The court found that the phrase "Go [name], it's your birthday" in Campbell's "It's Your Birthday" was not original -- the evidence showed that Campbell borrowed this phrase from chants popular at hip-hop nightclubs in the early 90s. Although the rest of Campbell's "It's Your Birthday" was protected original expression, the music publisher could not hold 50 Cent liable for infringement because he had only used the "birthday" phrase, which was not original to Campbell.

Fixation in a Tangible Medium

A copyrightable work is considered "fixed in a tangible medium" if it can be perceived, reproduced, or otherwise communicated for more than a transitory period. This includes any electronically readable formats (e.g., a blog post, email, or even storage in computer memory), audio recordings, and video. It does not matter whether the work has been "published" (i.e., made available to the world), as copyright protection is available to both published and unpublished works, so long as it is otherwise fixed in a tangible medium.

Some examples include:

  • Text, audio files, video content, and photographs that you see on a website (or elsewhere, for that matter)
  • Sound recordings, including spoken and musical content of a podcast
  • Articles found in magazines and newspaper
  • Songs recorded on a CD, saved to a hardrive, or notated on sheet music
  • Literary works such as books
  • Musical works (including the accompanying words)
  • Dramatic works (including the accompanying music)
  • Choreographic works
  • Pictorial, graphic, or sculptural works
  • Motion pictures and other audiovisual works
  • Architectural works

This list is not exclusive. Copyright protection can apply to any work fixed in any tangible medium of expression, whether this medium is currently known about or is yet to be developed, so long as the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. See 17 U.S.C. Sec. 102.

Some works cannot be copyrighted; visit the section on Works Not Covered By Copyright for more information.



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