Before diving into the different classes of intellectual property, a brief example will provide a good road map. Imagine going to your favorite restaurant and sitting down for dinner. The host or hostess hands you a menu as you sit down. All three major forms of intellectual property are present in the menu alone! You look at the menu and notice the restaurant’s logo or emblem on the cover; this is a trademark. You open the menu and read the restaurant’s mini history; this is copyrighted. You notice the plastic case of the menu; the plastic is almost certainly patented. Today, we discuss the requirements for copyrightability.
Under §102 of the Copyright Act, the three major elements are: 1) originality; 2) work of authorship; and 3) fixation.
To be original, the work must both be independently created and possess at least some minimal degree of creativity. The independent creation requirement exists simply to bar claims of authorship made by persons who did not actually create the work themselves.
The minimal degree of creativity standard is a very low one and exists except where the creative spark is utterly lacking or is so trivial as to be virtually non-existent.
Section 102 of the Copyright Act contains a list of works that constitute “works of authorship." The list includes: 1) literary works; 2) musical works; 3) dramatic works; 4) pantomimes and choreographic works; 5) pictorial, graphic, and sculptural works; 6) motion pictures and other audiovisual works; 7) sound recordings; and 8) architectural works. The list is meant to be illustrative of the types of works considered “works of authorship" but is not meant to be exhaustive.
The fixation requirement is satisfied when a work’s “embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Translated, this requirement essentially requires that the work be reduced to writing, recorded, or otherwise made permanent. Therefore, impromptu speeches or unrehearsed choreography are generally not copyrightable.
Going back to our road map, we can check to see whether the restaurant’s mini history is copyrightable. First, the history was likely independently created (not copied), and certainly contains a sufficient degree of creativity. Therefore, the history is original. Second, there is no doubt that this mini history would qualify as a “literary work" for purposes of the “works of authorship" requirement. Lastly, the history was written down or at least typed and therefore meets the fixation requirement. Therefore, because the mini history is original, is a work of authorship, and is fixed in a tangible medium of expression, it is copyrightable.
Now that we know what works are copyrightable, the next post will discuss how a work goes from being copyrightable to copyrighted, and what role registration plays in copyrights.