Copyright Basics

Copyright law gives the copyright holder (often the author or publisher) the right to control certain uses of works that are protected by copyright. It also gives users the right to make certain uses of those works without permission.

In the United States, copyright protects only “original works of authorship fixed in any tangible medium of expression.” To be eligible for copyright protection, a work must be:

• Original: To qualify as original, the work must be created independently and must have “at least a modicum” of creativity.
• A work of authorship: Works of authorship include literary works, musical works, pictorial, graphic, and sculptural works, audiovisual works, and sound recordings, as well as many other types of creative works.
• Fixed: A work must also be "fixed in a tangible medium of expression" by or under the authorization of the author. Writing a work on paper or on a computer hard drive, recording a work on tape, and sculpting a work out of marble (or ice!) all satisfy this requirement. An unrecorded improvisation (e.g., in music or dance) would not satisfy this requirement.

US copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It also does not protect works prepared by an officer or employee of the US Government as part of that person's official duties.

In the United States, copyright protection lasts for a limited time only. All copyrightable works eventually lose copyright protection. For more information about how long copyright lasts, consult Duration and Formalities.

In order to qualify for copyright protection in the United States, a work must satisfy the originality requirement, which has two parts. The work must have “at least a modicum” of creativity, and it must be the independent creation of its author.

The “modicum of creativity” requirement sets a low bar for copyrightability. In the case Feist v. Rural, the Supreme Court held that “the requisite level of creativity is extremely low; even a slight amount will suffice.” Nonetheless, some works do not meet that low standard. For example, the white pages section of a phone book does not have enough creativity to be copyrightable.

The “independent creation” requirement means that the author of the work will not get a copyright if she copied the work from elsewhere. It is possible, though, to obtain a copyright in a work that is identical to an earlier work, so long as the author did not copy from the earlier work, either consciously or subconsciously. Unlike patent law, copyright law does not require novelty. Judge Learned Hand gave an example of this principle in the 1936 case, Sheldon v. Metro-Goldwyn: “Borrowed the work must indeed not be, . . . but if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an ‘author,’ and . . . others might not copy that poem, though they might of course copy Keats's.”

The principle that copyright protects the expression of ideas but does not protect the ideas themselves is known as the “idea/expression distinction.”

The scènes à faire doctrine is one example of this principle. It says that when an element of a work is customary in a particular genre, it is not protectable. For example, although some plot elements can be protected by copyright, parents’ disapproval of their children’s romantic choices is a very common plot element and thus is not protectable. Similarly, although the composition of a photograph can be protected by copyright, certain compositions are so conventional that they cannot be protected by copyright. For example, while you would obtain a copyright if you photographed someone’s face straight on and framed it in the middle of the shot, your copyright would not allow you to prevent someone else from composing a photograph the same way.

Another example of the idea/expression distinction is the merger doctrine. Under merger, when there are only a few possible ways to express an idea, those expressions are not protectable. This means that individual words and short phrases are not protected by copyright. Longer phrases that are very conventional or factual may also be unprotectable. For example, consider the following sentence:  Marie Curie was born on November 7, 1867. This sentence is one of the only ways of expressing this information in English. Thus, it is likely uncopyrightable due to the merger doctrine.

A final example of the idea/expression distinction comes from Baker v. Selden, a US Supreme Court case from 1879. In that case, the Supreme Court found that, although copyright protected a book containing accounting instructions and forms, copyright did not prevent the defendant from using the same accounting system in another book. This is an illustration of what is now Section 102(b) — there was copyright protection for the work of authorship, but it did not “extend to any . . . system . . . embodied in [the] work.”

Unless they possess a modicum of creativity, charts, graphs, and tables are not subject to copyright protection, because they are purely factual. Thus, they do not meet the originality requirement.

For example, the xkcd Money chart by Randall Munroe, below, is sufficiently creative to be protected by copyright. Munroe has licensed it under the Creative Commons Attribution-NonCommercial 2.5 License.

However, the table below, which shows some of the data from the "Dollars" section of Munroe's chart, is not copyrightable.

Copyright may protect a database or other compilation of unprotectable elements, but only if it meets the originality requirement. Often, a factual compilation will not possess the required creativity, particularly if it is arranged in a conventional manner. In Feist v. Rural, the Supreme Court wrote:

Factual compilations . . . may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.

Even if a database is arranged with sufficient originality to qualify for copyright protection, the facts and data within that database remain unprotected by copyright law. Anyone can take those facts and reuse or republish them, as long as that person arranges them in a new way. For example, consider the following passage from Section 312.1 of the Compendium of US Copyright Office Practices:

The Office may register a claim in a compilation containing the names of the author’s fifty favorite restaurants. While a restaurant or the name of a restaurant does not constitute copyrightable subject matter under Section 102(a) of the Act, a list of restaurant names may constitute a literary work, which is one of the congressionally established categories of authorship.

"Faithful" reproductions of two-dimensional works of art do not have a copyright beyond the copyright in the original work. They lack the required "modicum of creativity." If the original work of art is in the public domain, so is the reproduction. If the original work of art is protected by copyright, it remains protected, but the person who made the reproduction does not get any new rights. 

Those who control access to the image may still impose contractual limitations on its use, even when the original is in the public domain.

Photographs of three-dimensional works of art will often have at least a "modicum of creativity." The photographer chooses the angle, exposure, etc. In some cases, she even arranges the subjects of the photograph. Thus, such photographs are copyrightable.