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Copyrightable subject matter

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Requirements Edit

The subject matter eligible for protection under the 1976 Copyright Act is set forth in Section 102(a):

Copyright protection subsists . . . in original works of authorship 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.[1]

From this provision, the courts have derived three basic requirements for copyright protection — originality, creativity and fixation.

The requirements of originality and creativity are derived from the statutory qualification that copyright protection extends only to "original works of authorship."[2] To be original, a work merely must be one of independent creation — i.e., not copied from another. There is no requirement that the work be novel (as in patent law), unique or ingenious. To be creative, there must only be a modicum of creativity. The level required is exceedingly low; "even a slight amount will suffice."[3]

The final requirement for copyright protection is fixation in a tangible medium of expression. Protection attaches automatically to an eligible work of authorship the moment the work is sufficiently fixed.[4]

Eligible works Edit

The types of creative works that are potentially eligible for copyright protection fall into several categories, including literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.[5]

In addition, copyright protects compilations and derivative works.[6]

Excluded materials Edit

Copyright protection does not extend to any underlying abstract idea, procedure, process, system, method of operation, concept, principle, or discovery, but rather it only protects the manner in which those ideas are expressed.[7]

Works of the federal government are statutorily excluded from the scope of copyright protection.[8] This includes the written opinions of federal courts, federal reports and documents, administrative regulations, and public laws. These materials are considered to be in the public domain.

References Edit

  1. The Copyright Act specifically excludes from protectible subject matter any "idea, procedure, process, system, method of operation, concept, principle or discovery" even if it meets the criteria for protection. See 17 U.S.C. §102(b). The Copyright Act also preempts any grant of equivalent rights for works of authorship within the specified subject matter. Section 301 provides:
    On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. §301(a).
  2. See 17 U.S.C. §102(a). The statutory qualification is derived from Congress' limited Constitutional authority to grant copyright protection to "authors" for their "writings." See U.S. Const., art. I, § 8, cl. 8.
  3. Feist Publication, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) ("vast majority of works make the grade quite easily, as they possess some creative spark").
  4. There are no formalities, such as registration or affixation of a copyright notice, for obtaining or enjoying copyright protection.
  5. 17 U.S.C. §102(a).
  6. Id. §103.
  7. Baker v. Selden, 101 U.S. 99 (1879); 17 U.S.C. §102(b).
  8. Id. §105.

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