Copyright protects "original works of
authorship" or more specifically "original works of authorship fixed in
any tangible medium of expression, now or later developed, from which they
can be perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device." 17 U.S.C. §102(a)
How original does a work have to be?
The term "original" was purposely left undefined by the Copyright Act
to let courts establish standards of originality and allow categories of
works to expand in response to technological advances. Originality does
not mean a work must be totally new or unique. Instead, there are two
components to originality:
1. Independent creation rather than copying - If two
authors create highly similar works, but neither copied the other,
each would own a copyright in their work and neither work would
infringe the other.
2. Minimal degree of creativity
- Some works, although independently created, are too trivial to
warrant copyright protection. However, the amount of creativity
required is very little. For instance, relatively short musical
phrases may be sufficiently original.
ZZ Top
sued over the use of the guitar riff from La Grange in a commercial for
a new model Plymouth Prowler. Chrysler argued that the riff was substantially similar to riffs in earlier songs
including Boogie Chillen
by John Lee Hooker.
Despite this, the court found the ZZ Top riff to be sufficiently original
to be protected. You can watch a video of ZZ
Top's La Grangehere.
In order to be protected by copyright, a work must be fixed in
some tangible form. According to the Copyright Act, copyrighted works must
be:
"fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of
a machine or device." 17 U.S.C. §102(a).
Why is there a fixation requirement to own property
that's intangible
in the first place? The reason for the fixation requirement is a purely
practical - proof. If intangible works are not made available in tangible form,
it would be very
difficult to prove their existence. Tangible form includes any written form (e.g., written
on paper,
printed, stored on a computer, etc.) from which the work can be perceived as
well as recorded form (e.g., tape, CD,
MP3 file, photograph, film, etc.).
Many different types of works can be protected by copyright
including all forms of literary, musical & other artistic works. Congress chose to adopt broad definition of authorship since authors
constantly develop new forms of expression. The Copyright Act specifies 8 categories of copyrightable works to
illustrate the types of works which may be copyrightable.
17 U.S.C. §102.
Any work that involves a written or recorded sequence of words, numbers or symbols
qualifies as a literary work.
Section 101
of the Copyright Act defines literary works as "works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or
indicia, regardless of the nature of material objects,
such as books, periodicals, manuscripts,
phonorecords,
film, tapes, disks, or cards, in which they are embodied."
This includes works such as novels, magazine articles, poems, catalogs,
directories, instructional works, compilations of data,
computer
databases and
computer programs, etc.
The copyright in a literary work (like
all works), gives ownership rights in an author's original arrangement of words
to express ideas and information. The copyright does not protect
a literary work’s theme,
plot, or other common elements and ideas the work is
based on.
Characters found in literary works may
also be copyrightable. However, a character must be
distinctly developed to be copyrighted. What this means is
that very distinctively described characters (e.g.,
Sherlock Holmes and James Bond) can be copyrighted, but
common stereotypical character types (e.g., a detective or
a spy) cannot.
Section 102(a)(2) of the Copyright Act 2) specified that "musical works, including any
accompanying words" are a category of copyrightable works of
authorship. This includes includes songs consisting of music and lyrics as well as
solely instrumental compositions. Music is generally comprised of several elements - lyrics,
melody, harmony and rhythm and all of these elements can
contribute to the originality of a musical composition. If words created independent of music without
an intention at the time
of creation to be combined with music, the words
constitute a literary rather than a musical work.
Often, the most memorable part of a musical
composition is its
melody which is made up of musical notes, the duration of notes,
and the order or
arrangement of notes. Unlike literary works, where there
are many words to choose from, musical composition is much more limited
in the sense that there are only 12 notes in the
musical
scale. While these 12 notes can be arranged in different ways,
even the arrangement is somewhat limited by
compositional patterns or conventions. Consequently, it is
fairly common to find some degree of similarity in songs that is
the result of coincidence rather than one songwriter copying
another. This can pose problems in determining copyright
infringement (to be covered later in this course).
Optional:
Circular 50:
Copyright Registration for Musical Compositions
Works that tell a story through action, dialog and narration
are dramatic. The copyright in a dramatic work can covers the dialog
as well as any accompanying music. A few examples
include
Gilbert and Sullivan musicals,
West Side Story, and
Phantom of the Opera.
Pantomimes and
choreographic works
involve non-vocal performances. The original
expression protected by copyright is expressed by movement (such as dance) or physical
attitudes rather than word or sounds.
Various types of visual art can be
copyrightable including paintings, sculptures,
photographs, maps, charts, and diagrams. Visually
depicted characters (as well as literary characters - see
above) can be protected.
Copyrighted
Characters
Optional:
Circular 40: Copyright Registration for Works of the
Visual Arts
Motion pictures and other audiovisual
works (television shows and other videos) can be
copyrighted. Motion pictures are defined by
section 101 of the Copyright Act as "a series of related images & accompanying sounds which,
when shown in succession through use of a projector or
other device, impart an impression of motion."
The music contained in an audiovisual work
is part of
the audiovisual work although it may also be a separately copyrighted
musical work. Don’t confuse the
soundtrack to a film (motion picture)
which is sometimes referred to as the film soundtrack
with a soundtrack album which may include copyrighted sound recordings
of copyrighted musical compositions, although the term is
sometimes used interchangeably.
Optional:
Circular 45: Copyright Registration for Motion
Pictures
A sound recording is a fixation of a series of musical, spoken or other sounds
or, in other words, a series of recorded sounds. The
copyright in a sound recording covers the collection of
recorded sounds rather than the
tangible object of fixation (i.e., a CD, computer file, etc.) or the musical
composition (song) recorded. A sound recording can consist of
any kind of recorded sounds, including spoken words (e.g., audio
books) and sounds occurring naturally such as
Songs of the Humpback Whale (listed as performed by
"Various Artists" If you're
interested, you
can hear some whale songs
here
- they're actually better than some stuff I've heard on
the radio.
Its important to understand the
difference between musical compositions and sound
recordings. When a copyrighted musical composition is recorded, there are
two
separate copyrights - a copyright in the musical composition
and a copyright in the sound recording. The
copyright in the sound recording exists separately from any underlying
musical, literary or dramatic works that are recorded. Often,
the two copyrights be owned by different parties - the
musical composition by a music publisher, and the sound
recording by a record company.
Example:
The song
Oh Pretty Woman was written by Roy
Orbison and William Dees. The copyright in the
song is owned by
Sony Music Publishing (which
acquired it from
Acuff-Rose Music which acquired
it from Orbison and Dees. Orbison recorded
and it was released in 1964 by
Monument Records
which owned the copyright in the Orbison
recording. You can watch a recorded
performance of Orbison singing Oh, Pretty
Woman
here.
Additionally,there have been many
other recordings of Oh, Pretty Woman,
including a recording by
Van Halen, a
ska
version by
the Holy Sisters of the Gaga Dada, and a rap
parody version by
2 Live Crew. Each of these recorded versions
of the same song is a separate copyrighted sound
recording. In the case of a copyrighted
song such as Oh, Pretty Woman, someone
wanting to make their own recording would need
to obtain a license to do so (unless there use
qualifies as fair use which will be covered
later in this course).
If that's not enough Pretty Woman
for you, check out a vide by Japanese, classically-influenced girl group
Vanilla Mood.
Optional:
Circular
56: Copyright Registration for Sound Recordings
The design of a building as embodied in any tangible
medium of expression (architectural plans, drawings) is
copyrightable. However, the copyright covers only
the overall
design rather than individual standard features such as a
door or a roof.
Its important things to understand about copyright is what it does and
what it does not protect. One of the most common misconceptions about
copyright is that it allows people to own their ideas. In fact, ideas are not protected
by copyright although the particular way an author expresses ideas may
be protected. The Copyright Act states:
"In no case does
copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work." 17 U.S.C. §102(b)
If you think about it, this rule makes good sense. Ideas must be free for use by all authors since they are
the fundamental building
blocks of creative expression. If one person could own a copyright in a
particular idea, that would mean no one else could create anything based
on that idea without permission. This would stifle rather than encourage
creation which is what copyright is ultimately intended to do. One way to
think of this is that ideas are part of the public domain and everyone is
consequently free to use them to create their own original works.
Although you are free to copy other authors' ideas, you
may not copy
the original way that another author expresses ideas. An author's
expression, assuming it it original and fixed in tangible form, is what is
protected by copyright. This means that although a work such as a book or
a song can be copyrightable, that doesn't mean every element that goes
into the creation of the book or song is protected. While the distinction
between ideas and expression is hopefully clear, determining exactly what
portions of a copyrighted work constitute unprotected ideas and what parts
constitute protected expression can sometimes be difficult.
While songs can certainly be copyrightable, basic building
blocks of musical composition are not. For instance, the copyright in a
song does not extend to ownership of individual notes, short and simple
note combinations, chords, chord progressions or rhythms.
Case Summary:
Warner Bros. v. ABC,
720 F.2d 231 (2nd Cir. 1983),
involved a copyright infringement battle between
superheros. Warner (owner of
DC Comics) sued
ABC
television network claiming that the superhero character
of its show
The Greatest American Hero infringed the
Superman character. The show featured a nerdy teacher
named Ralph Hinkley, who receives a
bright red suit from visiting aliens which gives him
superhuman abilities such as the ability to fly (although Ralph isn't
too good at it since he loses the instruction manual). The
lawsuit was dismissed since although Superman is a
copyrighted character, Warner Bros.' copyright doesn't
prevent anyone else from using the idea of a flying
superhero. Instead of being a
superhuman hero from another planet, Ralph was an average
guy who happened to run into some aliens who gave him a
magic suit and who stumbles along trying to be a hero and
is not substantially similar to Superman.
Basic building
blocks of authorship such as themes,
plots, and stereotypical characters (e.g.,
a superhero who can fly) are ideas and not
copyrightable so the Greatest American Hero
(Ralph Hinckley), did not infringe on Superman.
Believe It Or Not, the show's theme song was a #1 pop
hit.
The Copyright Act states that: "In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work."
17 U.S.C. §102(b). Inventions
cannot be protected under copyright, but may be protected under
trade secret and
patent law.
Facts cannot be copyrighted. If the first author to use a fact could gain
a monopoly over the use of that fact,
creation of other works would be severely restricted. Facts are discovered rather than created
and therefore do not satisfy the originality requirement for copyright.
Names, titles, and short phrases or expressions are not protected
by copyright.
Names, titles, etc. are not protected since they are usually too simple
to meet the originality requirement.
Even if a name, title, or short phrase is original, it cannot be
protected by copyright. The Copyright Office will not register claims to
copyright ownership in brief combinations of words such as: names of products
or services; names of businesses, organizations, or groups (including the
name of a group of performers); names of pseudonyms of individuals
(including pen name or stage name); titles of works; catchwords,
catchphrases, mottoes, slogans, or short advertising expressions. Mere
listings of ingredients, as in recipes, labels, or formulas are also not
copyrightable although an explanation or directions accompanying a recipe may be copyrightable. See
Copyright Office Circular 34.
Although not copyrightable, n
ames,
titles and slogans may be protected as
trademarks if used to
identify a brand of goods or services.
Since fixation is a requirement for copyright, works
that are not fixed in some tangible form are not protected by copyright. Most musical works are fixed in tangible form as part of
the creation
process (either recorded or written down in some form), but some musical works are created without fixation.
For example,
improvisation is a form of musical composition which,
although often extremely creative, is not subject to copyright unless the
improvised performance is
recorded.
Although copyright law does not protect unfixed works,
there are other laws that do. In the United States, a federal
the
anti-bootlegging statute
as well as some state laws make it illegal to record a live or broadcast
performance without the performer's permission. Doing so can be a criminal
offense (subject to up to 5 years imprisonment) if done "knowingly and for purposes of commercial advantage or private financial
gain"
18 U.S.C. §2319A.
Works that are in the
public domain are
not protected by copyright. Works in the public domain are owned by no one
and can therefore be used freely by anyone. Generally, works enter the
public domain when their copyright expires. However, works can also be
donated to the public domain by the copyright owner and in the past, some
works entered the public domain due to the copyright owner's failure to
use proper copyright notice on published copies of works.
Listen to the
Philadelphia Orchestra's recording
here
While public domain works are not protected by copyright,
it is possible to own a copyright in an arrangement of a public domain
work, assuming the arrangement is original. Often, it is difficult to
determine whether a work you want to use is a public domain work or a
copyrighted arrangement of the public domain work.
Example: The music to Beethoven's 5th
Symphony is clearly in the public domain,
but there are many copyrighted arrangements or
derivative works based on Beethoven's 5th
Symphony.
Walter Murphy
recorded disco versions of public domain works
including A Fifth of Beethoven, which
became a hit after it was including in the
Saturday Night Fever soundtrack.
Finally, while a musical
composition may be in the public domain, a sound recording
of that composition may be protected by copyright. So
although Beethoven's 5th Symphony is in the public domain,
the recordings by the Philadelphia Orchestra, Electric Light
Orchestra, Walter Murphy as well as many others are
copyrighted works.
