For a work to be protected by copyright law, it must be "original." However, the amount of originality required is extremely small. The work cannot be a mere mechanical reproduction of a previous work, nor can the work consists of only a few words or a short phrase. In addition, if the work is a compilation, the compilation must involve some originality beyond mere alphabetic sorting of all available works (see the discussion on compilations below for more information). Beyond that, almost any work that is created by an author will meet the originality requirement.
Works of Authorship
The Copyright Act uses the phrase "works of authorship" to describe the types of works that are protected by copyright law. This purposefully broad phrase was chosen by Congress to avoid the need to rewrite the Copyright Act every time a new "medium" was discovered. This intended ambiguity allows the Copyright Act to protect Web pages and mobile device apps even though these items did not exist at the time the Copyright Act was written. In order to clarify what was considered a work of authorship, Congress included a list of eight works of authorship in the Act itself:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
Although this list is not meant to be all-inclusive, most protected works fall into one of the specified categories. These categories are broader than they initially appear to be. For example, computer programs and most compilations are registered as "literary works," while maps and architectural plans are registered as "pictorial, graphic, and sculptural works."
In order for a work to be protectable, it must be fixed in a tangible medium of expression. A work is considered fixed when it is stored on some medium in which it can be perceived, reproduced, or otherwise communicated. For example, a song can be fixed by writing it down on a piece of paper. The paper is the medium on which the song can be perceived, reproduced and communicated. It is not necessary that the medium be such that a human can perceive the work, as long as the work can be perceived by a machine. Thus, the song is also fixed the moment the author records it on a voice recorder. Similarly, a computer program is fixed when stored on a computer' memory. In fact, courts have even held that a computer program is fixed when it exists in the RAM of a computer. This is true even though this "fixation" is temporary, and will disappear once power is removed from the computer. (For more information on when a work is not fixed, see the BitLaw discussion on how unfixed works are not protected by copyright law).
No other actions are required for copyright protection. There is no need to file an application for copyright protection, or to even place a copyright notice on a work. These additional steps, often referred to as "formalities," were previously required to secure copyright protection. Under the current law, the formalities of registration and notice now merely serve as recommended steps to expand the protection provided by copyright (see the discussion on copyright formalities for more information).
This automatic creation of copyright protection in the United States began in 1978. Before 1978, statutory copyright was generally secured by the act of publishing a work with a notice of copyright on the work. If a work remained unpublished, statutory copyright could be secured by the act of registration. If a work was published without a copyright notice, the work could enter the public domain and would not have copyright protection. Any work that was in the public domain on January 1, 1978 remained in the public domain.
Compilation copyrights are a special breed of copyrightable work. They are defined by the Copyright Act as a work that is formed by the "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." An example of a compilation would be a collection of the most influential plays of the Eighteenth Century. The individual plays themselves would not be subject to copyright protection, since the copyright would have expired (see the discussion in BitLaw on copyright duration for more information). However, the selection of the plays (as well as their order) involves enough original, creative expression to be protected by copyright. Therefore, the grouping of plays is protected by the copyright in the compilation even though each individual play is not protected. A grouping of facts is also protected as a compilation, assuming the grouping contains enough original expression to merit protection. For more information on this topic, see the detailed discussion on compilation copyrights in the BitLaw's discussion of copyright protection for databases.