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Copyright Requirements

There are three basic requirements for copyright protection: that which is to be protected must be a work of authorship; it must be original; and it must be fixed in a tangible medium of expression.


1. The Work of Authorship Requirement

What is a work of authorship? The subject matter of copyright embraces a wide range of works, whether published or unpublished, including: ƒ Literary or textual works of all kinds (including novels, short stories, biographies, articles, news stories, poems, outlines, letters, email messages, etc.). ƒ


Pictorial, graphic and sculptural works (including sketches, paintings, photographs, drawings, designs, etc.). ƒ Musical, dramatic and choreographed works (songs, telephone ring tones, plays, TV shows). ƒ Sounds recordings (performances of songs, public speeches, books on tape). ƒ Computer programs, most websites, and various other digitized works.

2. The Originality Requirement

“Originality” is a constitutional requirement, but it is a minimal requirement under copyright, not comparable to the “nonobviousness” standard for a patent. A hackneyed or trivial work can be original enough for copyright protection, so long as it is not copied from an earlier work and so long as it contains a tiny spark of creativity. What would represent insufficient creativity? Arranging the names in a telephone directory in alphabetical order.

3. The Fixation Requirement

A work must be “fixed,” under copyright law, to enjoy copyright protection. This does not mean it must be the final or a well-considered version of the work. Rather, the term simply refers to the requirement that an embodiment of the work be set down or “fixed in a tangible medium of expression” for a more than transitory period. A draft of a novel on paper, the “rushes” from a film before editing, the beta version of a computer program on a CD-ROM disk, a snapshot on film or a digital camera’s flash memory, all are “fixed” works within the meaning of copyright law. But the most brilliant and creative improvisation is not “fixed” if unscripted and unrecorded.

4. Copyright infringement

The unauthorized exercise by a third party of any of the exclusive rights of copyright holders, such as copying, is copyright infringement. There is no bright line test for how much is too much copying. But actionable copying is commonly presumed when the defendant had access to the original work and —after setting aside ideas or other elements of a work that are not protected —what is left is “substantially similar” to the original work. For works that enjoy only “thin” copyright protection (such as, for example, representational sculptures of real creatures), infringement will not be presumed unless the works are “virtually identical” or the defendant has “bodily appropriated” the original.

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