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What types of works are protected by copyright?

Posted by Thomas P. Howard | May 21, 2021 | 0 Comments

By: Scott Brenner

The U.S. Copyright Act protects “original works of authorship fixed in any tangible medium of expression.”[1] Specifically, copyright law protects:

(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.

Copyright law does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, useful articles, or discoveries.

Only original works are protected. The work must have “at least a modicum” of creativity, and it must be the independent creation of its author.

The “modicum of creativity” required is low; “even a slight amount will suffice.” A list of the 50 best restaurants qualifies for copyright protection. But the white pages section of a phone book does not express enough creativity to be copyrightable.

If the author of the work copied the work from elsewhere, they are not entitled to a copyright. But a derivative work is entitled to copyright protection. A derivative work is based on existing work—for example, translations, musical arrangements, or the motion picture version of a book. The derivative work must add new original copyrightable authorship to the work. The author of the derivative usually must obtain permission from the author of the original work.

Copyright protection only covers works that are “fixed in a tangible medium of expression.” “Fixed” means the work has been memorialized or recorded. Fixing the work on paper, on canvas, in an electronic device, or a sculpture meets this requirement. An unrecorded work such as an impromptu speech or musical performance does not meet this requirement.

Common questions about what is protected by copyright law.

I have an idea for a book. Does copyright protect it? No. Copyright protects expressions, not ideas. If you write the first chapter of your book, copyright law will protect your expression of your idea.

Can I copyright the title of my book? No. Titles and short phrases are not protected by copyright law. There is no minimum number of words to qualify for copyright protection, but a work must express a “modicum of creativity.” The sentence “the quick brown down jumped over the lazy dog” does not contain enough creativity to be protected by copyright law. But a 15-word haiku does contain sufficient creativity and would be protected by copyright. The title of a series of books may be protected as a trademark.

Can I copyright my software? Yes. The source code is considered a literary work protected by copyright. Some aspects of the user interface may also be protected.

Can I copyright my website? Yes. The text is a literary work protected by copyright. Photos and illustrations are also protected. But copyright does not protect the layout, format, or “look and feel” of a website. Nor does it protect common, unoriginal material, such as icons or familiar symbols.

Can I copyright my clothing design? No. Clothing is a useful article and not protected by copyright. The design or cut of a shirt cannot be protected. But, the separately identifiable matter is protected. For example, a photo of the Grand Canyon printed on a shirt is protected. Similarly, a pattern on the cloth may be protected.

Does copyright law protect my recipe book? Yes, but not the recipes themselves. Recipes are procedures and therefore not entitled to copyright protection. The selection and arrangement of the recipes are expressive and protected by copyright. So are any photos and any narrative text that accompany the recipes.

What about my trademark? Does copyright protect it? It depends on whether the trademark expresses the required “modicum of creativity.” For example, if the trademark is a stylized version of your company name, it probably does not contain enough expressive creativity to be protected by copyright. However, if the mark is an intricate illustration, copyright law may protect it. The best way to protect your trademark is to register it with the U.S. Patent and Trademark Office.

If you have further questions about what is protected by copyright or how to register your copyright, please call us at 303-665-9845 or contact us through our website.

[1] 17 U.S. Code § 102

About the Author

Thomas P. Howard

Thomas Howard is an experienced trial lawyer that handles intellectual property litigation nationwide, including copyright, trademark, trade secret and patent litigation, as well as complex civil litigation, including breach of contract, interference with contract, breach of fiduciary duty, conspiracy, fraud and fraudulent transfer of assets.


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