Join Dana Robinson for an in-depth discussion in this video Introduction to copyright law, part of Understanding Copyright: A Deeper Dive.
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- A copyright is a legal right you have in an original work of authorship that is fixed in tangible form. A copyright is a legal right with an R, a copywrite with a W is nothing. Copywriting is the process of writing copy, for example reviewing news articles, and is not related to copyright law. When we speak of whether something is subject to copyright we say it is copyrighted, not copywritten. Copyright is one of the five main areas of law that we call intellectual property, or IP.
You'll hear this term a lot so it's worth understanding what it means. Intellectual property is generally considered to include patents, trademarks, trade secrets, rights of publicity and copyright. Let me cover each just briefly so that you get where copyright fits into the IP family. Patent law protects inventions such as products or methods that are useful, novel and not obvious in light of previous inventions. Trademark law protects brands, anything that can be used to indicate the source of a product or service such as a name brand, a logo, a unique color or the shape of packaging.
Trade secret law protects confidential information that has value such as a secret recipe, a confidential business plan or a new product that has not yet been made public. Right of publicity law protects a person's name, image, likeness and voice, such as a celebrity's right to use his or her name or face to endorse a product. Finally, copyright law protects original works of authorship that are fixed in a tangible form, such as a book, a sculpture, song lyrics, computer code graphics, video and music.
Copyright law is the subject of this course. Ever since the invention of the printing press copyright law has been an important means of allowing protection for those that create written works. Copyright law is meant to provide an incentive for people to create original works by providing creators with a temporary monopoly. This is a social trade-off. Those who innovate are rewarded for a time, but at the end of the time the work is free for public use. In addition, by having more ideas come to fruition all of society benefits even though the originator of those ideas has a direct benefit for a period of time.
So what is a copyright? It's essentially the expression of an idea. Now to be protected by copyright the idea must be copyrightable subject matter, an original work of authorship that is fixed in a tangible medium of expression. Let's start with copyrightable subject matter. To understand what is copyrightable it helps to look at what is not copyrightable. A copyright cannot be a useful article. That's reserved for patent law.
In other words, copyright covers the creative aspects of things and cannot extend to the utilitarian or functional elements of something. This is because we have patent law to protect useful things so if something is entirely functional then it cannot be protected under copyright law at all. However, if there is what some courts call a physical and conceptual separability then a useful article with an aspect that is artistic can be copyrighted. Here's an example. We have a swivel bike rack.
When you look at the bicycle rack like the one pictured here you might think that it has a creative aspect but it also has a functional aspect, but this bike rack was found to be not copyrightable. What else is not copyrightable? You cannot copyright facts. You can protect the unique arrangement of facts, like an encyclopedia. Data cannot be protected. Databases can be protected as a whole but the data within the databases are not copyrightable. Recipes and algorithms are not copyrightable.
You cannot copyright an idea, just the particular expression. You can't copyright the idea of a flower but you can paint your version of one and copyright that. You can copyright your particular story but you can't protect the idea of the story. Finally, you can't copyright what is already in the public domain. This includes things that are in nature, ideas, or as I explain later, works that are already expired from copyright protection. Now that we've covered what you can't copyright, what can you copyright? Well the Copyright Office lists these certain broad categories of works explicitly: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audio visual works, sound recordings and architectural works.
Once you have a copyrightable subject matter you have met the first element. Next the work must be an original work of authorship. Let's start with what's original. Original means the expression hasn't been done before. Even if it's a variation on an older idea or a work in the public domain, your work is original if it has come out of your head and is not the kind of thing that we already said isn't protectable. You can't copyright a basic geometric shape and claim rights in that, however if what you create has minimal originality then it should satisfy the original requirement of copyright law.
So you need an original work of authorship. We talked about originality, let's talk about authorship. Who is an author? The author is the creator in most cases. If you create it, write it, sculpt it, film it, you're probably the author. The author can be a corporation that hires people to create as well, for example artists at Disney or programmers at Apple. Someone, whether it's an individual or a company, must create the work, this is authorship. When you have an original work and authorship by someone you have met the second requirement for copyrightability.
The final element for copyright is that it must be fixed in tangible medium of expression. The original work of authorship must be expressed in some tangible way, it can't just be in your head. If your work is a book you must have the words on paper, or these days words in a digital document. If your work is a painting you must have the painting painted. If your work is a sculpture you must have the completed sculpture. If your work is a video you must have the video filmed. For software your copyrights are in a combination of graphics and code.
You must have the graphics created and the code written to have something that is copyrightable. Let me summarize. Copyright is essentially a creative work that's actually been physically completed.
DISCLAIMER: This course is taught by an attorney and addresses US law concepts that may not apply in all countries. Neither LInkedIn nor the attorney teaching the course represents you and they are not giving legal advice. The information conveyed through this course is akin to a college or law school course; it is not intended to give legal advice, but instead to communicate basic information to help viewers understand the basics of intellectual property.