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Fair Use Reference Guide 1.0
  » Table of Contents
  » Download the PDF

  » Copyright 101
  » Fair Use
  » Cease and Desist 101
  » DMCA § 512 Takedowns

Will Fair Use Survive?

Intellectual Property and Free Speech in the Online World (a report about online service providers and takedown notices)

What Can, and Can't, Be Copyrighted: Copyrightable Subject Matter.

A wide variety of works may be copyrighted, so long as they are "original works of authorship fixed in any tangible medium of expression". (17 USC§ 102.)

Copyrighted works must be original. Originality means that the creator had some creative input into the work; merely collecting facts, for instance, is not generally considered creative. But if someone is very selective and creatively arranges the facts, that might be enough originality for copyright protection of that selection and arrangement.

They must also be "works of authorship", which are defined to include literary works; musical works, lyrics, and sound recordings; dramatic works including accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; and architectural works. (17 USC§ 102.) Most works of art and creativity in traditional media are copyrightable.

The final requirement is that works must be "fixed", which simply means recorded on paper, disk, tape, etc.

Kinds of Works

Literary works were among the first types to be protected by U.S. copyright law. This category includes books, magazines, pamphlets, articles — anything "expressed in words, numbers, or other verbal or numerical symbols". A "literary work" does not have to be a work of literature to have copyright protection: any work, no matter the quality of its writing, may be copyrighted if it is an original work of authorship. The law specifies that if something qualifies as a "literary work", it can be embodied in film, tapes, disks, or cards as well as in books, manuscripts, or periodicals. (17 USC§ 101.)

Music recordings may have several copyrights. The composition, the lyrics, and the recording of a specific performance are all separately copyrighted. (17 USC§ 101, 17 USC§ 106.) Additionally, while live performances are not protected by copyright law because they are not "fixed", federal law restricts unauthorized recording of live performances, and many state laws have anti-bootlegging laws that ban unauthorized recording or distribution of recordings of live performances.

Motion pictures, including films and video, may also have several copyrights. The film itself and the script have individual copyrights. In addition, each piece of music used in the film may have its own copyrights — for composition, lyrics, and that recording. Other aspects of the film may also be copyrighted.

Visual art, including graphics and photographs, are covered by copyright. (Burrows-Giles v. Sarony, 17 USC§ 102.) But to the extent that a photograph is merely a reflection of reality, and owes little to the creative efforts of the photographer, the copyright may be thin, and subject to greater fair use claims. Copyrightable elements within photographs, according to one court, include "posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved". (Rogers v. Koons.) Where a company made slide transparencies of artworks that were in the public domain, one court found that the photos did not have enough origainlity to qualify for copyright. (Bridgeman Art Library v. Corel.)

Sculptures are protected by copyrighted. However, if a sculptural work is also functional or utilitarian, the utilitarian aspects are not copyrightable, and to the extent the expression is inseparable from the utilitarian aspects, the expression may also not be copyrightable.

Maps, diagrams, models, and architectural plans are copyrightable. But as in all other parts of copyright law, the copyright extends only to the expression, and not to the ideas embodied in those works.