Copyrights

Copyrights are rights held by an author to a work created by that author. The work must be “original” and must be “fixed.” Furthermore, the material subject to copyright must not be barred by any of the several bars to protection, such as the idea/expression dichotomy, and the functionality bar to copyright protection.

The originality requirement for copyright protection is a low bar to meet. Non-fiction books that merely recount historical facts are subject to copyright, even though those works are considered to be protected by a “thin” copyright, and even an original “coordination, selection, or arrangement” of facts is subject to copyright. While the facts themselves may not be, the decision of ordering them in a certain way may very well be. For example, a phonebook has a list of phone numbers and names in it, and those are listed in alphabetical order. Because the decision to list the numbers in alphabetical order is not creative or unique in any way, a phonebook is not subject to copyright protection. Alternatively, if the numbers in the phonebook were listed in order of most likely to make campaign contributions to least likely to make campaign contributions, that might constitute an original ordering of those names and numbers that would be subject to copyright. It doesn’t seem very creative, but copyright law requires only a “modicum of originality.”

Fixation deals with the fact that ideas cannot be protected until they are more than just ideas. An idea must be materialized, fixed, and put down on paper, on a computer, or on some “tangible medium of expression” for copyright to attach. Fixation can be satisfied in some very interesting ways depending upon the technology at issue; for example, mere split-second presence on a server has sufficed for purposes of fixation in copyright law. Thus, digital creators of content need not fear that copyright will not attach to materially fleeting data as it moves from one platform to another. For purposes of copyright, those ideas have been “fixed.”

The idea/expression dichotomy is a complicated doctrine that relates to originality, and to the degree to which something can be protected despite the fact that it is both fixed and original. It is a very murky area of copyright law, and many criticize it for its opacity. Nevertheless, the theory holds that to the extent an idea can only be expressed in a single way, it is not subject to copyright protection, as there is no room for distinctiveness in the expression of that particular idea, and to afford copyright protection to the expression of that idea would be to take that idea out of the public domain altogether. This goes back to a more basic premise; copyright law protects ideas fixed in a tangible medium of expression, and in an original way, not just ideas themselves.

Finally, functionality doctrine holds that functional or useful articles are not to be protected by copyright. Most fashion is not protected by copyright for this reason; because clothing typically are useful articles, they are not subject to copyright.