Originality and Fixation in Copyright Law

Today, we look at two more required elements for copyright protection: “Originality” and “Fixation in a Tangible Medium.”

COPYRIGHTABLE ORIGINALITY

As the title of this post demonstrates, the threshold for copyrightable originality is so low as to be almost nonexistent.

Legally speaking, the copyright requirement for originality boils down to “the author didn’t just copy the work from somewhere else.” Independent creation is the standard, and it means that as long as the author actually created the work, brilliance is not required.

Authors need to remember that “illegal copying” includes more than “cut and paste.” Plagiarism, the act of copying someone else’s content or ideas and passing them off as your own (by cut and paste or by close paraphrase) can also constitute copyright infringement. Ethically, plagiarism is wrong even when it doesn’t rise to the level of copyright infringement. Remember to use proper citation and give credit where credit is due.

That said, copying non-copyrightable elements of a work does not constitute infringement. (Whether or not it’s good writing or ethical practice is a separate, and situation-specific, question.)

FIXATION IN A TANGIBLE MEDIUM

To receive copyright protection, a work must be “fixed in a tangible medium of expression and capable of being communicated or reproduced.”

The fixation must be “permanent” – but case law says a file saved on a computer is “fixed” for this purpose. The fixation can be accomplished either before or simultaneously with transmission to a recipient, but transmissions (such as radio interviews) are protected only if simultaneously recorded.

A curious offshoot of this rule: infringement can occur only where the infringing party reproduces a copyrighted work in a fixed form.

“Fixation” can take any permanent form: you can fix a work in writing, in audio or video recording, or as a computer file. As long as you “save a copy” in a form that someone else COULD see or hear, it’s “fixed” for copyright purposes. Fixation is a low threshold, but important to keep in mind, and also a good reminder: always save your work!

Thank you for joining me for today’s post on Originality and Fixation in copyright! Have questions about these or other copyright issues? I’d love to hear from you in the comments!