What does copyright protect?

What types of intellectual property are protected by copyright law?

Copyright protects original works of authorship fixed in a tangible medium of expression. Let’s break down that statement one element at a time.

A work of authorship is a creatively expressed piece. This can include everything from books to sculptures to video games. It includes works that are usually considered to be very creative, such as poetry and painting, and works that are usually considered to be less creative, such as software code.

A work must be original to be protected by copyright law. Its author must create it independently. If any part of a work is not original, the part that is not original is not protected by copyright law as a part of that work. For example, only the updated parts of the second edition of a textbook are protected under the copyright of the second edition. The unchanged parts are protected as part of the first edition.

An original work of authorship has been fixed as soon as the work has been written, recorded, or otherwise memorialized. If an original work of authorship is not recorded, copyright law does not protect it. An unrecorded musical improvisation, for example, is not protected by copyright law.

And finally, the original work of authorship must be fixed in a tangible medium of expression. This means that it must be possible to access the work again at a later time. The medium may be abstract, not of the sort that a person can hold in her hands. A sound recording, whether recorded on a phonograph or a hard drive or hosted in the cloud, is fixed in a tangible medium of expression.

What types of intellectual property are not protected by copyright law?

Copyright law does not protect facts or ideas, only the expression of those facts or ideas. For example, the idea of a novel about a young orphan discovering that he is a wizard and going to a special school for wizards is not protected by copyright law; but the Harry Potter books themselves most certainly are. Likewise, the facts described in an organic chemistry textbook are not protected by copyright law, but the way the authors of the textbook have chosen to describe them is.

There can be significant overlap in what kinds of intellectual property are protected by copyright, trademark, patent, and trade secret law. For example, a logo may be used as a trademark but may also copyrighted as a creative work. Likewise, computer code can be protected by patent due to its usefulness, but may also be copyrighted as a creative work.

Some parts of this post originally appeared on my law firm blog, the Web 2.0 Law Blog.

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