What Works Are Protected By Copyright?

• Jurisdiction: Maryland

II. WHAT WORKS ARE PROTECTED BY COPYRIGHT?

"Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."²

"Copyright protection" comprises the exclusive rights of a copyright owner, discussed in Part 4. "Subsists" indicates what must be done to obtain copyright protection, the subject of Part 3. "Original works of authorship" answers the question in general terms. More specifically, the Act provides eight categories that qualify as works that are protectable if they meet all other statutory requirements:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(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.³

Books are literary works, of course, but so are newspaper articles, letters, even electronic mail messages and other computer codes. Titles, names, or slogans are not long enough and, anyway, some of them can be protected by trademark law. No court has decided whether a 140-character tweet is long enough, and, until it does, the law remains somewhat uncertain. A stream of tweets almost certainly qualifies.

There are other nuances in these categories. When we think about architectural works, we might think of unique I.M. Pei or Frank Gehry designs. These qualify for copyright protection in the form of technical drawings or constructed buildings called "architectural works." But some aspects of even the work of such geniuses are purely functional⁴ and may instead be better candidates for patent protection, if any protection at all. In most cases, though, it will not be difficult to identify a novel, a symphony, a play, a ballet, a statue, a Hollywood film, source code, or an Elvis record as a "work of authorship."

What does the copyright law mean by "original"? It is said that we all stand on the shoulders of giants, meaning all of our authorial output is built upon the work of others to some extent. The copyright law takes this into account, and the courts used the word "modicum" to describe the quantum of originality required for copyright in declaring insufficiently original the "white pages" of pre-Google telephone book (containing only names, addresses and numbers arranged in alphabetical order). Another word used by the courts is "scintilla." Thus, the "originality" requirement of copyright law is much lower than the "novelty" standard of patent law.

Additionally, the work must be created...