"Hmm…Is That Copyrightable?": An Overview of Protectable Content Under the Copyright Act of 1976

copyright-Prince_dburtonWhether it's a nifty idea you had for a drawing that you end up sketching out one evening or a new clip you shot last weekend to edit and upload to Facebook, Instagram, YouTube, or another digital platform, have you ever wondered if or what content or ideas of yours are eligible for copyright protection?  Fundamentally, our copyright laws seek to protect inherent rights that an author or creator has in exclusive original works while maintaining accessibility by the public to such works.[1]  Responsible for protecting expressive works representing over $1.5 trillion dollars of core economic activity (accounting for nearly 7.5% of all economic activity across the United States) and helping facilitate employment for over 5.7 million people, copyright laws contribute significantly to help drive creation of economic activity and support growth.[2]  Copyright laws are intended to incentivize the production of creative works by granting authors the exclusive right to engage in the distribution and economic commercialization of their works—a form of limited, statutorily-created monopoly.

Tasked by way of Clause 8 of Article 1, Section 8 of the Constitution with defining the scope and breadth of copyright law, Congress enacted the Copyright Act of 1976, codified at 17 U.S.C. § 101, et seq. ("Act"), which establishes the parameters and framework of copyright law and protections across the United States.  As stated in the statute, a copyright protects an original work of authorship that 1) is fixed in a tangible medium of expression, known or developed later; and 2) can be reproduced, communicated, or simply perceived.[3]  Despite that broad and encompassing framework, not all works are eligible for copyright protection.  Under the Act, a "work of authorship" eligible for protection includes: 1) literary works; 2) musical works and accompanying words; 3) dramatic works and accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic, and sculptural works; 6) motion pictures and other audiovisual works; 7) sound recordings; and 8) architectural works.[4]  Although identifying subject matter protectable by copyright outside these enumerated categories has proven difficult for individuals, eligible protectable works are not strictly confined to those eight categories of works.

In addition, copyright eligible subject matter is entitled to protection only if it is "original." As the United States Supreme Court has explained, an "original" work is an independently created work by an author that possesses "some minimal degree of creativity."[5]  However, the original work must simply be original, not necessarily "novel," as the latter term is often used in forming the basis for protections under patent law.  As such, an original work does not have to be entirely new nor unanticipated to be entitled to copyright protection.  Instead, the work must possess the slightest modicum of creativity, even if the expression is "crude, humble or obvious."[6]  Utilizing the Act's framework and applying this seminal decision, the federal Court of Appeals for the Sixth Circuit (encompassing Ohio, Michigan, Kentucky, and Tennessee) has held that even an author’s selection and organization of materials for a work can, standing alone, satisfy the creativity requirement for copyright protection under the Act.[7]

The final requirement is the fixation in a tangible medium of expression capable of reproduction or communication with the aid of a machine or device.  Examples of potential protectable works include software, recordings, programs, videos, and images.  In sum, the idea or process an author has must be capable of being expressed and reproduced or disseminated in some tangible form, including through the use of technology or other communication or presentation mediums, to satisfy this requirement.

As discussed, copyright law permits a wide variety of works to be eligible for protections while in the public domain.  Nonetheless, the Act limits protection to the ultimate expression of an idea, not the idea itself, as, according to the Supreme Court, permitting protection for ideas would inhibit the exchange of facts and ideas, thus running afoul of the whole purpose of the Act.[8]  Specifically, the Act prohibits the following from being eligible for any protections under the Act: 1) ideas; 2) procedures; 3) processes; 4) systems; 5) operation methods; 6) concepts; 7) principles; and 8) discoveries.[9]  In short, while an individual cannot legally infringe upon a copyright holder's rights in a tangible expression of a work, the underlying pre-expression idea, concept, principle, etc., absent more, may not be protected.[10]

So, if you still have that nifty idea, you should probably go ahead and bring that idea to life by actually expressing it in a medium such as a book or video.  Otherwise, you won't be able to rely on copyright law to keep anyone from copying it.



[1] See generally 17 U.S.C. § 101, et seq.

[2] Robert Stoner and Jéssica Dutra, Copyright Industries in the U.S. Economy: The 2020 Report (December 2020).

[3] 17 U.S.C. § 102(a).

[4] 17 U.S.C. § 102(a)(1)-(8).

[5] Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

[6] Id. (internal citation omitted).

[7] Hiller, LLC v. Success Grp. Int'l Learning All., LLC, 976 F.3d 620, 627 (6th Cir. 2020).

[8] See, e.g., Harper & Row Publrs., Inc. v. Nation Enters., 471 U.S. 539 (1985).

[9] 17 U.S.C. § 102(b).

[10] See, e.g., Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117–19 (9th Cir. 2018).

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Finley Newman-James | Faruki Attorney