An Introduction to Copyright Law

Source of Copyright Law

The U.S. Constitution grants Congress the power to govern copyright in Article I, Section 8: “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
” Copyright law encourages creativity by providing a time-limited monopoly. Another way to think about it is that authors have a “bundle of rights” they can exercise over their works. Copyright law is primarily Federal law so it doesn’t matter what state you are in, the law will be the same.

Relationship to other IP

As noted below, some things that cannot be protected by copyright may be protected by other types of intellectual property such as Trademarks or Patents. The copyright office will often decline to permit registrations of single words or short phrases, titles, headlines, slogans, or even typefaces. However, some of those may be eligible for a Trademark. Copyright law explicitly does not protect discoveries, procedures, processes, methods of operation, and systems. Inventions generally can be protected with either a United States registered Patent law or trade secrets.

Conditions for Copyright

1) Fixed

Two fundamental elements are required for something to be eligible for copyright: it must be fixed and original. However, a third element is now emerging, particularly in this era of rapid technological advancement, namely, the author must be a human being. This distinction is becoming increasingly relevant in the age of AI, where the line between human and machine creativity is blurring. 

What does it mean for something to be “fixed”? To be “fixed” means the work is “sufficiently permanent or stable” so that it can be perceived, reproduced, or communicated, either directly or indirectly through the use of a machine (17 U.S.C. §101, 102(a)). 

The law protects the work rather than any abstract idea that may inspire it. Ideas, discoveries, procedures, processes, principles, concepts, methods of operation, and systems are not covered by copyright. In part, this is because they would be covered by Patent law. A recipe for example could not be copyrighted. However, if someone were to write a recipe down using calligraphy that creation would be copyrightable, even if the recipe itself would not be protected by copyright.

2) Original

Courts consider a work original if it is (1) created independently by the author and (2) has some minimal level of creativity. The threshold for originality is extremely low. The Supreme Court in Feist Publications v. Rural Telephone Service Company (499 U.S. 340 1991) set an objective standard, unrelated to the artistic value or amount of time spent. It doesn’t mean novel or unique. A work can even be similar to another work so long as the author was not intentionally copying that work.

What can be copyrighted?

Copyright law lists eight (8) different types of copyrightable categories:

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

These categories have some special rights associated with them.

What are the rights given to copyright?

Copyright statutes list six exclusive rights (17 U.S.C. § 106). These rights don’t apply equally to all of the different types of copyrights. 

  1. The right to reproduce or copy 
  2. The right to create derivative works
  3. The right to distribute
  4. The right to perform
  5. The right to display publicly
  6. The right to perform by audio transmission

The right to perform publicly only applies to literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works. The right to display publicly only applies to literary, musical, dramatic, choreographic works, pantomimes, pictorial, graphic, or sculptural works, and stills from motion pictures or audiovisual works. Performing by digital audio transmission only applies to sound recordings.

This division of rights makes sense. No one can really perform a painting or architectural work. Likewise, preventing the display of an architectural work would be practically impossible once the building has been built.

This was meant to be a very superficial overview of copyright law. Other copyright issues to consider include Fair Use, Artificial Intelligence and some of the specific rights granted to different types of copyright such as music.