What can be protected?

Protected Categories

Copyright law specifically recognizes several categories of works that receive protection. Those categories include:

• literary works

• musical works, including any accompanying words

• dramatic works, including any accompanying music

• pantomimes and choreographic works

• pictorial, graphic, and sculptural works

• motion pictures and other audiovisual works

• sound recording

• architectural works

Although this list is not meant to be all-inclusive, most protected works fall into one of the specified categories. These categories are broader than they initially appear to be. For example, computer programs and most compilations are registered as "literary works," while maps and architectural plans are registered as "pictorial, graphic, and sculptural works."

What Is Not Protected by Copyright?

Copyright does not protect:

• Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries

• Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)

• Titles, names, short phrases, and slogans

• Familiar symbols or designs

• Mere variations of typographic ornamentation, lettering, or coloring

• Mere listings of ingredients or contents For more information, see Works Not Protected by Copyright

Threshold of Originality

The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author"

Original works are works that have not been copied, in whole or in part, from another source. This standard differs from the “novelty” and “uniqueness” requirements associated with patent law. To obtain patent rights, an inventor must demonstrate that the invention differs substantially from all previous inventions and public knowledge. The copyright requirement of originality is significantly less rigorous. To meet the copyright standard of originality, a creator must simply develop the work independently. Original works eligible for copyright protection must be the fruit of the efforts of the creator, but the work need not be novel or unique in the patent law sense. For example, two music composers could, working independently, compose songs that are similar or even identical in music and/or lyrics. If each of the composers worked truly independently, each composer would have full copyrights associated with her composition. Though neither is the only work of its kind, there was no copying, so each work is deemed original. The analysis of a work’s originality when there already exists a similar work focuses on two elements. The first is the extent to which, if any, the two works are similar. The more similar the two works are, the greater the concern that one of the works is not truly original. The second element is the opportunity for copying. This involves a factual examination of the extent to which the creators of the similar works had opportunities to review the work of the other creator. The greater the opportunity for one party to examine the work of the other, the more likely that there is a problem with originality.

The opportunity to review creative content developed by other parties often takes place innocently, with no intent to copy. Musicians and composers constantly listen to music created and performed by others, and artists routinely view paintings and photographs created by their colleagues. These encounters technically provide opportunities for copying, even if there was no prior plan to do so. Copyright infringement disputes are often challenging to resolve as, in many instances, any copying that takes place was unintentional. Intent to copy the protected material of other parties is not required for a finding of infringement. All that is required is a factual determination that significant copying has occurred.

Creativity

An important component of originality is creativity. A mere listing of facts or information, such as lists of names, addresses and telephone number provided in a standard phone directory, for example, is not a creative work. However, creative does not necessarily mean novel or unique. If the material is creative and not just a mere listing of information, then the fact that others may have developed the same or similar works independently does not undermine the creativity of those works.

Works for Hire

Copyright protection extends to works that are commissioned by businesses and other organizations. These are generally described as “works-for-hire” where the creator was paid by an organization to create the work for the organization, including works created in the normal course of employment. Works-for-hire can also be established by non-employees when there is a valid written contract and the creator has been compensated for the work.