Today, we’re continuing the new series on Copyright with a brief look at a threshold copyright protection issue:
What is “Copyrightable Subject Matter”?
To obtain copyright protection, a creative work must consist of “copyrightable subject matter,” as that term is defined by applicable law.
In the United States, that law is 17 United States Code section 102(a), which states that “Copyright protection [exists] … 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…”
Hooray for legalese!
Let’s translate to English:
In order for copyright to protect your work, it has to be (a) original, (b) a “work of authorship,” and (c) fixed in a tangible medium which can be viewed, communicated to others, and reproduced.
The two fundamental criteria are originality and fixation.
Note that there is no requirement that the work possess any artistic merit. However, the level of protection provided by copyright gets narrower as a work becomes less original, and copyright applies only to the original, copyrightable elements of the work.
So…WHAT IS COPYRIGHTABLE?
Short answer: anything that complies with these criteria and meets the legal definition of “copyrightable subject matter.”
Longer answer: here’s an exemplary (but not complete or exhaustive) list:
- Literary and creative written works – including everything from short stories to novellas to novels, and even multi-volume works. Anthologies are included in here also.
- pictorial, graphic & photographic works
- sculptures and sculptural works
- architectural works (though the architect’s copyright does not include “standard or functional features” like windows and doors and cannot prevent people from taking photographs of the finished building or prevent the owner from performing modifications, construction/renovation, and/or destruction of the building)
- dramatic, pantomime, and choreographic works (stage plays, radio plays, scripts, etc.)
- musical works and sound recordings (But once released, music is subject to compulsory licensing under another federal law. More on that another day.)
- recordings of performances
- motion pictures & audiovisual works
- derivative works (works based on copyrighted works or on elements of copyrighted works – again, more on this in a future post)
As you can see, the list is long and extensive … and it includes some items that don’t appear here. In fact, copyright protects any creative work as long as it meets the threshold elements set out above.
Things which DO NOT receive copyright protection include:
- “words, slogans and phrases” (these are the realm of trademark law)
- ideas, procedures, processes, systems, methods, concepts, principles or discoveries (where appropriate, these are protected by patent law).
- “building blocks” of creative expression, archetypes, and basic character types (for example, “an E.R. doctor,” “a corrupt lawyer”, “a boy wizard”).
- “themes” or “solutions to problems”
- blank forms designed for recording information.
- facts (historical or otherwise)
- works created by or under contract for the United States government (but the U.S. Government can legally own copyrights assigned to it by third party creators)
- useful articles, where the functional aspect of the object is inseparable from the object’s artistic elements
In addition, the “Merger” doctrine says that where a topic permits or requires only a limited range of expressions or explanations, copyright becomes weak (and in some cases, nonexistent) with regard to the terms for which merger applies.
An example of”merger” would be the way a character uses a telephone.
If your protagonist picks up the handset, dials a set of numbers (either with physical buttons or virtual ones on a screen) , and raises the handset to her ear to listen to the call, you probably can’t copyright the “mechanical” aspects of that activity. It’s the way most people place a phone call. And since the idea of “making a phone call” permits only limited manners of expression (at least in the non-science fiction context) copyright on those necessary elements of the process is thin to nonexistent.
What is said on the call, however, is probably copyrightable, at least if it’s fiction.
Lots to absorb in one day, but hopefully this gives at least a starting idea about the difference between copyrightable subject matter and things that don’t receive copyright protection.
Next week, we’ll move on and take a look at originality, ownership, and copyright in jointly-authored works. In the meantime, if you have questions about this or other copyright issues, please feel free to ask me in the comments!