Copyright protects the expression of an idea by its creators. Our clients create “stuff” all the time in the normal course of their business. They can also create this stuff when they are supporting social causes or communities or exercising their First Amendment rights. Does any of this “stuff” qualify for copyright protection? And can these creators stop others from profiting from resharing or selling their “stuff”?
Recent Examples
The Rebel Loon. An artist in Minnesota has created artwork of a “Rebel Loon” symbol, a combination of the rebel alliance symbol from Star Wars and a Loon, the State Bird of Minnesota. This artwork was shared on social media sites. Now, third-party companies have co-opted this art and are selling clothing with this logo on it through ads running on these same social media sites – presumably not providing any compensation or credit to the original creator of this work.
Photography. Photos taken by photographers capturing locals exercising their First Amendment rights in various forms have been (re)posted by third parties on their personal social media platforms without attributing credit to the original photographer (where in one case the original photographer happened to see his photo and commented that it was his!).
Signs and artwork. In many of the photographs and videos showing demonstrations taking place in cities across the U.S., there are quite a few signs and banners with creative expression in the form of new art and/or commentary.
Works Copyrights Cover
With these 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. 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.
Musical Works. Musical compositions and any accompanying words.
Dramatic Works. Screenplays, operas, musical comedies, etc.
Pantomime and Choreographic Works. 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. Two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, art reproductions, maps, globes, charts, technical drawings, architectural plans, diagrams, and models. Commercial artwork is copyrightable, even in the form of commercial labels and packaging.
Architectural Works. Extends to a building itself, and includes the overall form of a building as well as the arrangement and composition of spaces and elements of the design.
Compilations. 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 to the work.
Collective Works. 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 work based upon one or more preexisting works, such as a translation, screenplay of a novel, movie from a book, etc. The copyright in a derivative work extends only to the original contribution of the author, which must be something more than a trivial variation.
Copyright covers a lot of “stuff,” but some client creations are not eligible for copyright protection. Some examples are: “Industrial designs” (see design patents); 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.
