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Elements of a Copyright

28. What are the requirements for establishing copyrights?

Federal law governs the creation of copyrights. Unlike some other forms of intellectual property, there is no need to file or register the copyright. Copyright protection arises when an expression meets the following requirements:

•    Original Work – The expression must be the original work or creation of the author. That is, it must be sufficiently distinct from existing works so as to demonstrate some level of uniqueness in the content or organization of the content. This means that the work must be created and not copied.

⁃    Note: Facts are not original works; rather, the are recitations of certain truths. Expressions containing facts can, however, be protected by copyright depending upon the selection and arrangement of those facts.

•    Affixed to a Tangible Medium – The creative expression must be affixed to a tangible medium. This means that the copyrighted work must be recorded in a tangible format. A tangible format may include recording the work on paper, canvas, hard surface, digital device (such as a camera, hard drive, or video recorder), etc. If a expression is made without recording it to any form of tangible medium, it does not receive copyright protection. In fact, if the expression is communicated to the public prior to being recorded, it may find itself in the public domain and incapable of copyright protection.

•    Creative Expression – The expression must show some aspects of creativity. The expression cannot be entirely obvious or commonly understood. Logical arrangements of facts lack the required creativity. Forms that simply record information are generally not considered to be creative expressions.

⁃    Example: The alphabetical arrangement of a telephone book is not a creative expression.

As stated above, pursuant to the Copyright Act of 1976, an expression that meets the requirements for copyright receive automatic protection. Federal registration of the copyright is available and does offer unique advantages to the holder of the copyright. Registration puts the world on notice of the copyright. Whether registered or not, the owner of a copyrighted work may use the symbol “© ” to indicate her claimed rights in the work. No form of public notice, such as use of the copyright symbol, is required for protection.

•    Discussion: How is the process for establishing copyrights different from other forms of intellectual property? Why do you think this is the case? Is there any argument for requiring a copyright holder to provide notice to the public of the claimed copyrights?

•    Practice Question: Dora is writing a screenplay. She is worried about individuals copying her work and claiming it as their own. Can you explain to her the requirements for securing copyrights in her work?

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