In my many years as a literary lawyer and publishing consultant, I have found that most writers take one thing for granted–whatever they create is entitled to copyright protection.
But are they right to do so? That depends.
The 1976 Copyright Act extends copyright protection only to your “[o]riginal works of authorship fixed in any tangible medium of expression, now known or later developed . . .” [For the complete provision, see USC, Title 17, Section 102(a)].
There is more to the law than what I have quoted here and every word is significant. Nevertheless, it is the first four words above—“original works of authorship”– that literary lawyers like me most often repeat and is at the heart of what copyright protects.
While US copyright law automatically bestows a copyright on each writer’s creation, it also conditions protection on a presumption that few creators are aware of: that what you created is an original work of authorship.
Your Ideas Are Not Your “Work”
Everyone is familiar with real property (acreage and buildings) and personal property (jewelry, cars, clothing, furnishings, etc.). Intellectual property is a third property category which sounds like what it is–a product of the mind—and that product is what we call a “work.”
A work starts with an idea, often with the proverbial “aha!” moment. But an idea alone is not enough to establish the existence of intellectual property. We need to be able to express or transform our idea so it results in a work.
Suppose I want to write a mystery novel about a woman reporter at a newspaper. Once I am inspired by that idea, I use my creative powers to transform the idea into what we call a creation or expression of the idea. I may create only a plot outline or I may develop characters, dialogue, and setting.
Once I have expressed my idea to an extent and in a form that it can be read or recorded, i.e., it is available in a tangible medium as usable property, my creation or expression of my original idea becomes a “work.” Because copyright protects works in the fine arts, publishing, entertainment, and software, I know copyright is the protection I need for this type of work.
But copyright law requires still more of me.
Is Your Work Sufficiently Original for Copyright Protection?
In 1903, when US Supreme Court Justice Oliver Wendell Holmes defined originality, he wrote, “Personality always contains something unique” and “expresses singularity even in handwriting.”
The justice was discussing the difference between the words I use to describe a dozen red roses and the words you use to describe the same red roses. Though our subjects are identical, our descriptions will not be. The words need only be original to each writer, and they need not be brilliant. It is the writer’s choice of words and their arrangement or sequence that is key to literary originality.
Still, Justice Holmes’ requirement for a “very modest grade of art” demanded measurement. How unique does your work have to be to be sufficiently original under the Copyright Act?
Eventually, federal courts defined the minimal degree of creativity as the difference between the white pages and yellow pages (if you are old enough to recall phone books). Because the white pages consisted of a mere list of facts—names, addresses, and phone numbers—the courts held that the white pages were not sufficiently original for copyright protection. However, the arrangement and sequence of various ads in the yellow pages were found to exhibit a sufficient degree of creativity to cross the originality threshold.
Thus, while your list of elements for a recipe is factual and eludes your copyright, your description of how and when to mix and cook those elements is sufficiently unique to qualify for copyright protection.
When it comes to originality, your work must be original to you alone, not copied, and should possess some minimal degree of creativity, i.e., more than a list of facts.
The Key to Authorship—Marry Your Work
Although this article is directed primarily to readers who call themselves writers or authors, everyone in publishing should know that the Copyright Act requires that you share the title of “author.” Under the Copyright Act, any sculptor, painter, dancer, composer, film director or writer is an author of their work.
The sole prerequisite is that you, the creator, have created an original work. Only then does authorship exist. The writer becomes the author of her article, the sculptor becomes the author of her sculpture, and the composer becomes the author of his symphony. The original works you create cannot exist without you.
When it comes to copyright law, authorship is a marriage of an original work to its author. To quote an old song called Love and Marriage by Sammy Cahn and Jimmy Van Heusen, “you can’t have one without the other.”