Demystifying Copyright Protection

Dunlap Bennett & Ludwig PLLC

These days, it seems almost impossible for most people to spend a day without using the internet. For some, that means not reading daily news articles online by swiping their smartphone screens. For others, that means not posting real-time Instagram stories on their social media account. Indeed, the internet brought instant, easy access to a variety of written and visual materials. However, what it also brought are misconceptions about what works are protected under the copyright laws. For example, if a person contributed certain ideas in the creation of new materials, some believe that alone automatically makes the materials protected by copyright. Unfortunately, that is not what U.S. copyright law says.

Copyright protection does not cover ideas. However, copyright does protect expressions of ideas. Such expressions can exist in different forms, including but not limited to, literary works, visual works, sound recordings, performances, and sculptures. For example, the estates of the late comedians Robin Williams and George Carlin, along with other comedians recently brought a lawsuit against Pandora, a well-known streaming platform, alleging infringement of their works of standup comedy. In their complaint, the plaintiffs argued that Pandora publicly performed, broadcasted, reproduced, displayed, and distributed their properly-registered, literary works of theirs without their consent. The fundamental bases of these infringement allegations were that these comedians’ ideas of their jokes, remarks, and movements were actually put in a tangible, physical format (as literary works), and they were thus entitled to claim copyright protection and enforce their rights against the third-party infringer. If they merely had some thoughts about how they present their jokes on stage, shared them with other people, and did nothing more, that would have gotten them nowhere. Or worse, such sharing would have allowed the other people to create their own works based on the ideas and claim ownership of those works.

While putting one’s work in a physical form of expression is indeed a necessary component, that alone is not enough to be afforded copyright protection; the expressions in such work also need to be original enough. That usually means the author of the work should make sufficient independent selections and arrangements of the existing facts that show a minimum level of creativity. A good example of a literary work that was held not copyrightable came from a famous U.S. Supreme Court case where a party published a typical telephone directory consisting of white pages and yellow pages, and obtained data for the directory from subscribers, who must provide their names and addresses to obtain telephone service. The court in the case concluded that the aforementioned white pages are not copyrightable because “[t]he raw data are uncopyrightable facts, and the way in which [that party] selected, coordinated, and arranged those facts is not original in any way.” The court also said the “selection of listings [in the white pages that are at issue] — subscribers’ names, towns, and telephone numbers — could not be more obvious and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.”

In short, not every work is copyrightable, and one should not simply put the copyright symbol © on any work he/she uses out of a concern that someone else might use that work. As with all other property rights, the person must first understand what rights he/she has first, as well as the scope of those rights, before thinking about taking action against others. In the context of copyrights, that means making the copyrightability determination by looking into the requirements mentioned previously. But, determining if these requirements are met is often difficult on the outset because it involves heavily fact-based inquiries — it often requires one’s proper identification of relevant facts, close attention to the details of them, and careful application of governing copyright laws to those facts. Having a knowledgeable and practical copyright attorney that has the acumen to navigate your own situation can certainly help you identify and secure the rights in your creative works. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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