Entrepreneur's Toolkit - What Works Can Be Protected by Copyright?
What Can Copyright Protect?
Copyrights protect the expression of an idea, not the idea itself. To protect ideas themselves, you need to use an alternate form of protection, such as patents or trade secrets.
The work must be:
- original - independently created and not copied from another source (ideas and facts can be obtained from other sources, the manner of expressing those ideas cannot without risking copyright infringement);
- a work of authorship - the result of creative expression in a copyrightable field
- fixed - fixation requires a tangible medium of expression so the work can be repeatedly consumed
Copyright protects your work regardless of registration, but registration is required for enforcement of copyright rights in court.
No Copyright Protection - Use Patent or Trade Secret Protection (Mostly):
- Ideas
- Procedures
- Processes
- Systems
- Methods of operation
- Concepts
- Principles
- Discoveries
- Inventions
- Recipes (e.g., lists of ingredients and simple directions for preparing a dish)
- Lists of information
- Names, titles, slogans, and other words or short phrases (consider trademark instead)
- Domain names or URLs (register these early)
- Most typefaces/fonts
- Most formats/layouts of books
- Blank forms (unless they themselves convey information)
- Works that are not fixed in a tangible form (examples):
- Improvisational speeches that have not been written down or recorded
- Unrecorded or un-notated choreographic works
- Unrecorded and unwritten oral stories
Copyright Protection Is Possible:
- Literary, dramatic, musical, and artistic works
- Computer software source code, object code, machine code
- Books
- Plays
- Music
- Lyrics
- Paintings
- Drawings
- Sculptures
- Photographs
- Literary, graphic, or artistic descriptions, explanations, or illustrations of non-copyrightable works as long as they contain a sufficient amount of original authorship
- Newspapers
- Magazines
- Articles
- Podcasts
- Videos
- Movies
- Recordings of performances
What Can a Copyright Holder Control?
U.S. law (similar to laws internationally) grants the holder of copyright rights the exclusive right to control
- Reproduction (making copies);
- Adaptation (modification or adaptation of the work into new works, including things like sequels, movies and shows from books and vice-versa, annotations, translations, updated computer programs, etc.);
- Publication and distribution (how a work is transferred to others, such as sale, rental, lending, and digital transfers);
- Public performance (to groups of people outside of a normal family circle, including things like public movie showing, streaming content over the Internet, plays, and musical performances;
- Public display (beyond merely displaying an authorized copy of a work to people present where the copy is located; examples include using a photograph on a website or sign, or showing copyrighted art in a movie scene); and
- Performing a sound recording publicly by means of digital audio transmission (e.g., audio streaming)
of the copyrighted work. Copyright law is flexible in allowing copyright holders to control each of these rights, and individual rights can be held, sold, licensed, or otherwise transferred separately.
What Can't a Copyright Holder Control?
Copyright holders' rights are not without their limitations. The Copyright Act includes several limitations and exceptions to copyright holders' rights. These include:
- Purchasers of authorized copies are allowed to re-sell or dispose of those copies as they see fit (the "first sale exception").
- Libraries and archives are allowed to make copies for preservation purposes.
- Owners of computer programs are allowed to make a backup copy of the programs.
- Certain displays and performances are allowed for classroom education, religious services, and transmission to the disabled or blind.
- Certain entities can reproduce and distribute some works in special formats for the blind or other handicapped persons.
- Compulsory licenses permit: 1) reproduction of certain musical works in the making and distributing of sound recordings, 2) cable and satellite operators' retransmitting of programming with a statutory licensing fee, 3) jukebox public performances, and 4) use of certain works in noncommercial broadcasting.
- Fair Use is a broad defense to copyright infringement that permits uses of others' copyrighted works (or derivatives thereof) in certain circumstances. Typically, it is best to consult a copyright attorney before relying on fair use as a defense to copyright infringement.