Copyright Part One: The Definition of Protection for Creative Works

Intellectual property is a work or invention that is the result of creativity to which one has rights and which one may protect. A copyright is a way by law to protect a writing, for example, whether it is published or not. The U.S. Copyright Office designates copyright protection for “… original works of authorship fixed in any tangible medium of expression, now known or later developed…” (see 17 USC § 102(a)). Essentially there are three parts to the protection: (1) being a work of authorship, which we explore in more detail within a separate article, (2) being original, and (3) being fixed in a tangible medium of expression.

Original. A work must be original to the author in order to be protected. Further, the term “original” as used in copyright law simply means (i) that the work was independently created by the author and (ii) that it possesses at least a minimal degree of creativity. Feist Publications v. Rural Telephone Service is an illustrative case from 1991 in which Rural Telephone Service’s mere directory compilation deserved no copyright protection. The test is that an idea be more than “so mechanical or routine as to require no creativity whatsoever” – that the idea contain some “creative spark.” The court ruled that Rural Telephone Service’s directory was nothing more than an alphabetical list of all subscribers to its service, meaning no creative expression was involved.

Fixed. The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device. For instance, a short story that is printed on paper meets this requirement, while a live performance of the same short story that is not being simultaneously recorded does not. Another example exists in a song. A song is considered fixed when it is written down on paper, which is the medium on which the song can be perceived, reproduced, and communicated. Further, as long as the work can be perceived by a machine, like the moment the author records it onto a cassette tape or compact disc, the song is fixed. Similarly, a computer program is fixed when stored on a computer’s hard drive. Further, even though bits and bytes are only temporarily fixed via the random access memory (RAM) of a computer, many courts have held that a computer program that exists in RAM is fixed for the purpose of copyright protection.