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Copyrightable Works

For a work to be copyrightable, it must be an original idea that is put to use.  The idea alone cannot be protected by copyright.  Rather, it is the physical use of that idea, such as an illustration or a written novel that is covered under copyright law.

Generally, a copyrightable work will fit into one of these eight categories:

  1. Literary works – Any work expressed in letters, numbers, or symbols, regardless of medium. Computer source code is also considered to be a literary work. If a literary work is fictional, its characters, plot, structure and other devices can be copyrighted along with the actual text, but only to the extent that they are original and expressive.
  2. Musical works – This category covers original musical compositions.  Actual performances of music are covered as a different type of work, a “sound recording.” However, anyone may create a sound recording of any composition, so long as they pay that composer a set licensing fee.
  3. Dramatic works – This category is distinguished from literary works in that they direct a performance through written instructions.
  4. Choreographic works – They must be “fixed,” either through notation or video recording.
  5. Pictorial, graphic and sculptural (PGS) works – Any two-dimensional or three-dimensional art work may be copyrighted as a PGS work.
  6. Audiovisual works – Includes films, television programs and any other work that combines audio and visual components.
  7. Sound recordings – This category includes any magnetically or digitally recorded audio work (except the accompanying audio to a visual work, which is treated as part of the audiovisual work).  Unlike musical works, there is no statutory licensing of sound recordings.  A person can produce a rendition of an artist’s composition by paying him the statutory fee, but cannot reproduce his recordings without his express permission.
  8. Architectural works – Copyright in architectural works only extends to aesthetics.  If a design element is “functionally required,” it is not protected by copyright.

These apparent narrow classifications are however interpreted very broadly and cover pretty much anything the human creative intellect can come up with.  A good example for this is computer programs which fall under the category of “literary works.”

Copyright does not protect ideas, whether they are fact, opinion or fantasy.  It only protects the expression of those ideas.  In this regard, copyright cannot protect ideas, procedures, systems, processes, concepts, discoveries or devices (as distinguished from a description, explanation or illustration).  Others can freely use the underlying ideas and concepts in a copyrighted work.

Compilations of facts, such as encyclopedias, dictionaries and even telephone directories, can receive copyright protection.  But the facts themselves cannot be copyrighted—only the expression of those facts can be copyrighted.  This means that many database providers cannot rely on copyright to protect their data from being republished: they must rely on licenses and other elements of contract law.  In other cases, the law of unfair competition can prevent one business from using another’s compilations of information in an unfair way.  In the realm of software, source code and object code are copyrightable, but other elements of a program may not be.  User interfaces, for instance, are generally not copyrightable.

There are some categories of work that are not copyrightable.  If the creative component of a work cannot be separated from its functional component, it cannot be copyrighted.  This is known as conceptual separability.  In addition, works of the U.S. federal government are not copyrighted.  State statutes and court opinions are generally considered to be public domain as well, because of a public policy interest in allowing citizens unrestricted access to the law.

Another important aspect of copyright is whether or not the work is fixed.  Fixation requires that the work be recorded in a form that can be perceived directly or by means of a device “now known or later developed.”  Writing, drawing, sculpting, recording and making notations all count as fixation. Improvisational and/or unrecorded performances of music, dance or drama are likely to be creative but not fixed. Something that is typed on a computer but never saved to a permanent storage medium might also be unfixed (but once the work is saved, it is fixed).  In the same manner, ice sculptures are not adequately fixed to warrant copyright protection, but RAM copies of data are adequately fixed.

Copyright is therefore a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic and certain other intellectual works that are fixed in a tangible form of expression.  In general, copyright gives the copyright owner the exclusive right to do, or authorize others to do, the following: reproduce the work; prepare derivative works, distribute copies to the public by sale or other transfer of ownership, or by rental, lease or lending, and to perform and display the work publicly.

Copyright however does not protect ideas, procedures, systems, processes, concepts, discoveries or devices (as distinguished from a description, explanation or illustration). Others can freely use the underlying ideas and concepts in a copyrighted work.

Inside Copyrightable Works