The basics of CopyrightOct 09, 2021
America is great for artists. Since our foundation under the Constitution, this country has consistently upheld and strengthened the rights of the innovators that have propelled our nation and the globe forward in culture, thought, movement, philosophy, and the general expression of ideas. However, like most things involving the government, the rights and protections America has afforded artists are trapped in a confusing jumble of laws that often puzzle the most educated in the subject. Today I’m going to tackle one of the rights trapped in those laws, and a question that is often asked about that right—what is copyrightable?
Title 17 U.S.C. § 102(a) states that the subject of a copyright can only exist in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” It goes on further to state in § 102(b) that in “no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation,” et cetera. In normal person speak, this basically boils down to a copyright can only be found in a fixed original expression—the key word being expression.
For illustration, the famous photographic portrait of Oscar Wilde pictured below would be copyrightable if it wasn’t in the public domain. While the idea of taking a photographic portrait of Oscar Wilde is not copyrightable, this particular image is copyrightable. Why? Simply because the lightening, camera angle, positioning and pose of the subject, background, composition, and costuming are all original expressions of the photographer-artist of the persona of Oscar Wilde. So if this image’s copyright was still enforceable, I’d be free to take my own portrait of Oscar Wilde, but I could not make prints of this picture or reproduce it without permission of the copyright holder.
An easier example would be that I could not copyright the idea of a love song, so that everyone who wrote a love song would have to get permission from me. But I could write my own love song, which I could copyright.
Finally, fixation is the other key element of copyright. This element is really just an evidentiary element to allow the courts to determine that what is being protected is not the idea still floating in the artist’s head, but something fully realized that a third party could view and determine is the artist’s expression—whether it is in the form of code in the computer, the written lyrics of a song, or a painting that is registered with the Copyright Office and filed in the library of congress.
So, the next time you're creating something, take a look at what you're doing - is it something you created on your own that is an expression in a fixed tangible form?
Image courtesy of Pete Linforth, Pixabay
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