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Copyright Law: Copyrightability

A guide designed for MU Law students to introduce some of the Law Library resources on U.S. Copyright.

What Is Copyrightable?

Copyrightability Generally

Under Section 102 of the Copyright Act, copyright protection vests in all, "original works of authorship." In practice, this means that, for something to be copyrightable, it must satisfy two requirements: (1) it must be original; and (2) it must be fixed. Both of these requirements are enumerated in more detail below.

 

Perhaps the most important general concept of copyright law is that copyright does NOT protect ideas. While certain ideas may be protectable under other forms of intellectual property law (like patent law), copyright law only protects expressions. For more information on this concept, see the passage on "fixability" below.

Copyright Obtainment & Duration

Obtaining a Copyright: Copyright protection vests in all original works of authorship immediately upon the time of the work's creation. A copyright owner does not need to register a work with the US Copyright Office in order to obtain protection.

 

Duration of Copyrights: A copyright's duration is governed by Sections 302-305 of the Copyright Act. In general, a work's copyright protection starts immediately upon the creation of the work and continues for the lifetime of the work's author plus an additional 70 years (this is often formulated as simply "lifetime+70"). If the work's author is a corporation or other entity for which the term "lifetime" does not apply, the copyright's term expires 95 years after the date of the work's publication or 120 years from the date of the work's creation, whichever is earlier.

Originality

The Copyright Act vests copyright protection only in original works of authorship. In Feist v. Rural Telephone Service, the U.S. Supreme Court clarified this language by saying that a work will be considered original if: (1) it is independently created by its author, and (2) it has some minimal level of creativity.

INDEPENDENT CREATION: One way of understanding the "independent creation" aspect of originality is through the principle that facts are not copyrightable. Facts are not copyrightable because they do not owe their origin to an act of authorship.

MINIMAL CREATIVITY: The level of creativity required to obtain copyright protection is low and does not entail considerations of subjective notions like artistic value or merit. The level of effort expended in producing a work is not relevant to determinations of creativity. It is possible, as in the Feist case cited above, for an author to expend a great deal of energy creating a work without making any sufficiently creative decisions to warrant copyright protection.

Fixability

The Copyright Act does not provide copyright protection for ideas. It only protects expressions. As such, in order for a work to by copyrightable, it must be fixed. In order for a work to be considered fixed, it must be both (1) perceivable and (2) stable.

PERCEIVABLITY: A work is perceivable whenever it can be perceived by a third party either directly or with the aid of a machine or device. This requirement is rarely an issue.

STABILITY: Mere perceivability is not enough for a work to be considered fixed. For a work to be fixed, its perceivability must be sufficiently stable. Put another way, a work must be perceivable for more than a transitory duration in order to be considered fixed. For this reason, improvised performances cannot be copyrighted for lack of stability (though it should be noted that audio or audiovisual recordings of improvised performances can be copyrighted). The concept of "transitory duration" is not specifically defined. Therefore, no specific temporal duration of perceivability can guarantee protection.

Translation / La Traducción

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