Client Creativity Coverage, by Copyright

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Copyright protects the expression of an idea by the creator(s) of that expression. Our clients create “stuff” all the time, but what of that “stuff” qualifies for copyright protection?

Three recent examples of copyright issues in the news are (1) Taylor Swift alleging copyright infringement by an amusement park (Evermore Park, in Utah) for its costumed actors performing her music without permission, (2) a photographer who took a photo of Prince suing the Andy Warhol Foundation for copyright infringement based on a series of Warhol prints of Prince, made in reliance on that photo, and (3) the recent holding by the U.S. Supreme Court that the copying by Google (for its Android platform) of 11,500 lines of computer code from Oracle’s Java SE API was not copyright infringement, but rather a fair and transformative use.

With these high-profile examples in mind, let’s review what types of works copyright covers in the U.S. (try to do this with your client’s creative efforts in mind).

Literary Works

This category includes fiction, nonfiction, poetry, periodicals, textbooks, reference works, directories, catalogs, advertising copy, compilations of data, and computer databases. The work can be a book, periodical, manuscript, phonorecord, film, tape, disk, or card. Computer programs fall within this category.

Musical Works

This category includes musical compositions and any accompanying words.

Dramatic Works

This category includes screenplays, operas, musical comedies, etc.

Pantomime and Choreographic Works

For this category, the requirement that a work be fixed in a tangible medium can be accomplished by filming, diagramming, or reducing the pantomime or choreographic work to some form of notation.

Pictorial, Graphic, and Sculptural Works

This category includes two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, art reproductions, maps, globes, charts, technical drawings, diagrams, and models. Commercial artwork is copyrightable, even in the form of commercial labels and packaging.

Architectural Works

Architectural plans are copyrightable as “pictorial, graphic and sculptural works.” Copyright protection also extends to a building itself, which may be considered to be “architectural work” that includes the overall form of a building as well as the arrangement and composition of spaces and elements of the design.

Compilations

A “compilation” is a work formed of preexisting materials that are selected, coordinated, or arranged so that the resulting work as a whole constitutes an original work of authorship. The copyright protection for a compilation extends only to the material contributed by the author(s) to the work and does not imply any exclusive rights in the preexisting material.

Collective Works

A “collective” work is a work (such as an anthology or encyclopedia) in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

Derivative Works

A “derivative” work is a work based upon one or more preexisting works, such as a translation, screenplay of a novel, movie from a book or story, etc. The copyright in a derivative work extends only to the original contribution of the author(s), which must be something more than a trivial variation. It does not include any exclusive right in the preexisting material.

That’s a lot of “stuff” that copyright covers, but some client creations are not eligible for copyright protection. Here are some examples:

  • “Industrial designs” (an ornamental design is protectable in the U.S by design patent);
  • Words and short phrases (e.g., names, titles, or slogans);
  • A commercial label that consists solely of a trademark or a slogan;
  • Typeface designs;
  • Recipes;
  • Blank forms that do not in themselves convey information (e.g., checks, address books, order forms); and
  • Facts (works consisting entirely of information that is common property containing no original authorship (e.g., schedules of events)).

While a copyright protects the expression of an idea, copyright does not protect the underlying idea, procedure, process, system, method of operation, concept, principle, or discovery. For protection of the underlying idea, the owner must rely upon patent law or trade secret law. Our takeaway here: be attentive to your client’s creative efforts, beyond the copyrightably obvious.

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