Writing Wednesday: Copyrightable Subject Matter

Today’s post continues the new Writing Wednesday dedicated to all aspects of publishing law and “deciphering legalese.” Much of the post can also be found on Twitter (albeit in smaller bites) under the #PubLaw hashtag.

So…what types of creative works are subject to copyright protection?

According to the U.S. Copyright Act (17 USC 102) “(a) 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…”

Legalese indeed.

TL;DR: A creative work which shows originality & is “fixed” in a reproducible form may well qualify for copyright.

Note that there is no requirement for novelty, ingenuity, or artistic merit. Courts have long claimed that there is no copyright in “obscenity” but are increasingly protecting works that many consider obscene, so even that limitation appears to be going away.

The level of protection given a work narrows as the work becomes less original. (An old joke, funny only to copyright lawyers, refers to protection “as thin as the phone book” because telephone books receive only very limited copyright protection.)

Among the items that can receive copyright protection: literary and written works (though there is no requirement that they have any literary value), pictorial, graphic & sculptural works, architectural works (though protection does not prevent remodeling by the owner), dramatic and choreographic works (including pantomime), musical works and sound recordings (subject to compulsory licensing rules), motion pictures and A/V works, and derivative works (more on this in a subsequent Writing Wednesday).

As you can see, the list is long and comprehensive – by design. Congress intended to provide expansive protection for creative works in order to foster and promote creativity and “the useful arts.”

One might argue the usefulness of certain fiction, but there can be no question that the ability to protect creativity has fostered a large community of writers and artists, as well as a body of art which is both expansive and diverse.

Have questions about publishing or copyright? Feel free to ask in the comments section or via Twitter with hashtag #PubLaw

Next week…creative works that aren’t subject to copyright. Creator, beware!