Copyright Basics: Subject Matter of Copyright

This is the beginning of a series of posts about basic copyright; each post will highlight important sections of the Copyright Law. Today I will cover which materials are subject to copyright protection and explain why certain things are not subject to copyright protection.

The subject matter of copyright is covered by Title 17 of the United States Code § 102. § 102 (a) says copyright protection subsists “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]

The first part of the statute promulgates two important points: To have protection the work must be original and it must be fixed in some form. This means written, recorded by sound or video, chiseled into stone, saved on a hard-drive or any other way which seems appropriate for the particular form of work. The protection is extremely broad as it allows for “any” medium which exists now or is later be developed. I.e. if in the future holograms à la Star Trek: The Next Generation come into existence, a hologram artist would probably own a copyright in the image he or she creates. The fixation requirement also means that any works not fixed in a tangible manner cannot be subject to copyright protection. Therefore, speeches, live performances, and dances cannot gain protection unless they are reduced to some fixed form.

Under § 102 there are eight categories of protect works;

  1. Literary works;
  2. Musical works, including any accompanying words;
  3. Dramatic works, including any accompanying music;
  4. Pantomimes and choreographic works;
  5. Pictorial, graphic, and sculptural works;
  6. Motion pictures and other audiovisual works;
  7. Sound recordings; and
  8. Architectural works

That’s right mimes, or it could also mean panto; which looks like a awfully silly British Christmas play, but I doubt it. These categories cover nearly all possible forms of creative expression. Protection even extends to works that may not be considered “creative” in the traditional sense, such as computer software and textbooks. Also, there is no protection for works created by the United States government[2]; therefore, all statutes and government publications are not subject to copyright protection.

Limitation: idea vs expression

The most important limitation on copyright is commonly referred to as the “idea expression dichotomy”. This means that copyright does not extend to any idea but only to the particular expression of the idea. This limitation was created in a famous copyright case, Baker v. Selden and the government even incorporated the Baker rule into the Copyright Act which states not only that copyright does not extend to ideas, but also not to any “procedure, process, system, method of operation, concept, principle, or discovery.”[3]  Therefore, copyright cannot exist in titles for albums, blank forms, or works containing common information with no original authorship.[4]  The government provides specifics on the limitations in Chapter 37 of the Code of Federal Regulation § 202.1.

So next time you hear someone say “Hey, (insert name here), had the idea for that movie first!” you may appropriately say, “well, that may be true, but there is no copyright protection in ideas, only expressions of ideas”. This will probably result in a blank stare, but it’s true, so therefore you may create a story about a masked vigilante who fights crime under the darkness of night; just don’t give him a backstory of dead parents at childhood, a loyal butler, who is billionaire industrialist by day but a caped crusader at nighttime.

Limitation: useful articles

The last limitation is a bit of a complicated matter. While copyright may exist in areas previously discussed; a copyright will not be granted in the design of a useful article (even if it looks artistic or pretty). A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[5]  This means that copyright may not extend to lamps, sinks, banks, clothing, or anything else that looks neat but has a primary function of being used for some purpose other than aesthetics. As you might imagine, this is much more complicated than it seems because a copyright may be granted “if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.”[6] For example, a toy’s primary function may be a child’s plaything but it could be protected as a sculptural work.

So that is copyrightable subject matter in about five hundred words; keep in mind this area is more complex than it seems and each of the aforementioned rules is subject to an immense amount of limitations in the copyright law and in common law; not to mention several treaties the United States has entered over the last 100 years which further complicates matters.

DISCLAIMER: This article is purely informational, any information contained within is not legal advice. Should you need help with a legal matter please contact an attorney.

[1] 17 U.S.C § 102 (a)

[2] 17 U.S.C § 105

[3] 17 U.S.C. 102(b)

[4] 37 C.F.R. § 202.1

[5] 17 U.S.C § 101

[6] 17 U.S.C § 101