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Copyrightability

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​.

Originality

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.”
Idea/Expression Distinction

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.”