Vol. 6, No. 1, Pg. 28. PROTECTION FOR WORKS OF 'AUTHORS'AN OVERVIEW OF COPYRIGHT PRINCIPLES.

• Author: Mark C. Dukes and Craig N. Killen

South Carolina Lawyer

1994.

Vol. 6, No. 1, Pg. 28.

PROTECTION FOR WORKS OF 'AUTHORS'AN OVERVIEW OF COPYRIGHT PRINCIPLES

28PROTECTION FOR WORKS OF 'AUTHORS'AN OVERVIEW OF COPYRIGHT PRINCIPLESMark C. Dukes and Craig N. KillenWhile efforts are under way to increase access to information through projects such as the "information superhighway," the information itself is being created at an unprecedented rate. Much of the credit for this information explosion can be attributed to the copyright system established by Congress. Copyright encourages the creation of "original works of authorship" by allowing the copyright owner certain exclusive rights in the work. This article provides an overview of the statutory copyright scheme, which is bound to play an increasingly important role in the everyday practice of law.

SUBJECT MATTER

Broadly speaking, copyright is a legal right to prevent others from copying the expressive content of a protected work. Unlike a patent, the existence of a copyright does not depend on a specific "grant" from the government. Instead, federal copyright automatically arises whenever a "work of authorship" is "original" and is fixed in a "tangible medium of expression."

In a colloquial sense, the term "author" often is associated only with those who create works of literature. Copyright, however, protects "works of authorship" falling into many different categories. The copyright statute gives the following examples of works that qualify for protection:

* literary works;

* musical works, including any accompanying words;

* dramatic works, including anyBy Mark C. Dukes and Craig N. Killen accompanying music;

* pantomimes and choreographic works;

* pictorial, graphic and sculptural works;

* motion pictures and other audiovisual works;

* sound recordings; and

* architectural works.

17 U.S.C. § 102(a). Because this list is nonexclusive, additional types of works may also be included so long as the other requirements of the statute are satisfied. "Because of the profound technological changes that currently are affecting everyone, it seems a certainty that the significance of copyright will continue to increase."

The originality requirement does not mandate that the work be absolutely novel, only that the author not have copied it from someone else. This means, as set forth in a well-known example offered by Judge Learned Hand, that two poets may simultaneously create identical poems. So long as neither poet copies from the other, each will have an independent copyright in his or her poem. The threshold of originality is very low, supporting copyright whenever more than "minimal" originality is present.

To satisfy the requirement of "fixation," the work need not be visually perceptible. Instead, fixationis deemed to occur whenever the work is recorded in any tangible medium of expression that is "now known or later developed, from which [the work] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Id. For example, the digital encoding of a computer program onto a floppy disc satisfies the fixation requirement even though the program cannot be read without the aid of a computer. A live broadcast, such as a sporting...