Just like trade secrets and trademarks, copyrights are another type of intellectual property that exists even without formal registration; your creative expression is yours from the moment you put pen to paper, or fingers to a keyboard. However, it is recommended that you register your copyrightable work because registration confers a number of legal benefits: you are not able to file an infringement claim until your work has been registered and it is prima facie evidence that you do in fact have a valid copyright, which saves a lot of time should a suit occur for proving that you meet the threshold requirements of a copyright.

Copyright protects creative expression, and it does so as soon as you have written, recorded, typed, or photographed it. Works of authorship include the following categories:

  • Literary works
  • Musical works, including any accompanying works
  • Dramatic works, including any accompany music
  • Pantomimes and choreographic works
  • Pictorial, graphic and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works

The only two requirements to have a copyright are originality and fixation. Originality is a low standard to meet; if you created it, it is yours. Usually. Copyright requires individualized and subjective decisions of the author for something to be considered creative. Facts, data, and statistics cannot be considered original even if it took effort and labor to come up with them. Compilations of facts in a creative way may become copyrightable but the underlying facts themselves are not.

For a work to be considered fixed it must have a certain duration, and be authorized. To be sufficiently durable it must either be stable or last long enough to permit it to be perceived, reproduced, or otherwise communicated for a period of time. Echoes don’t count, but a sand castle built at low tide probably would; if you are talking about something in between, call a copyright attorney. The method of fixation doesn’t really matter; it can be almost anything from a marble sculpture to film, even a computer’s RAM, and everything in between. Lastly, it must become fixed by or under the authority of the author. That simply means that the author must be the one to record, or authorize someone else to record, their performance, for example. An unauthorized fixation may not give anyone any rights, and may even infringe on the author’s copyright if the work was already protected.

Ideas vs. Expressions

Just as facts cannot be protected by copyrights, ideas cannot be copyrighted either. However, an author’s original expression of an idea is copyrightable. Sometimes it can be quite difficult to determine where the line will be drawn between idea and expression, and, in fact, the protection of an author’s expression extends somewhat further than the literal words on the page. The rationale for this theory is that if a copyright was limited to the exact text plagiarists would escape by making small, inconsequential variations. Alongside the issue of ideas being separate from the expression there is the “merger doctrine.” The merger doctrine essentially states that when ideas merge with expression there is no copyright. If the only way to convey the idea is with a particular expression (e.g. a fillable form may be original expression but are necessary for the use of the idea behind a particular system of bookkeeping) then the two are inseparable. If that happens, the merger doctrine applies and the expression is not protected by copyright. Generally, if there are practical, real-world applications for the thing trying to be copyrighted, the merger doctrine will step in.

Useful Articles


If something is truly practical, the appropriate Intellectual Property protection is a patent rather than a copyright. The “useful article doctrine” divides the worlds of patents and copyrights. Items that are strictly useful fall within the realm of patents, while artistic creations belong in the world of copyright law. For example, a “useful article” is an article that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Useful articles can be pictorial, graphic and sculptural works that are capable of receiving copyright protection only if the features are capable of existing independently of the useful aspects of the article. This applies when copyrighted work has both a practical, functional aspect and an expressive aspect. It ensures that the copyright’s protection is limited to the expressive aspect and does not cover the practical, functional aspect. This isn’t always a straight forward analysis. Depending on jurisdiction, courts apply a few different tests to determine if the work falls under the useful article doctrine.

One test looks to see what was in the creator’s mind throughout the design process. Were the expressive elements significantly influenced by functional considerations? If yes, then there is no separability and no copyright. Another test focuses on the form of the work and looks at a reasonable person standard. Does the article stimulate in reasonable person’s mind a concept separate from that evoked by its physical function? If no, no separability and no copyright. And still a third test focuses on whether the expressive aspects of the work make it function better. Does the expressive part of the article make the article function? If yes, no separability and no copyright.

Authorship, Joint Works and Works for Hire

Normally whoever creates the creative work is the author, and the owner, of the work. If you work with another person to create something that becomes a joint work, and the two of you are co-authors with equal rights to the work. In certain circumstances, however, that isn’t quite as clear cut. If you are an employee and you create something for your employer that is within the scope of your employment your employer is the author of the work, and owns all of the rights to it; this is called a “work for hire.” If you are an independent contractor or service provider your work may also be considered a work for hire, if, and only if, there is a signed agreement to that effect. Only certain types of work are eligible to be considered work for hire when it comes to non-employees, so be very careful before relying on a “Work for Hire Agreement” to secure your rights to a project!


If you copy a copyrighted work without permission, you have infringed on the rights of the owner. But is that the only way to infringe? No, copyrights convey a bundle of rights, not just the right to prevent copying. Copyrights give the owner the exclusive right to reproduce a work, to make derivative works based on the copyrighted work (your own sequel to Harry Potter, for instance), to distribute copies, to perform their music or theatrical work in public, to display their work publicly, or to broadcast their music. If you do any of these to works belonging to someone else without obtaining the necessary permission or license, you may have infringed on their rights as a copyright owner.

Fair Use

The quicksand of the copyright word is “fair use.” Almost everyone has heard of it, and almost nobody understands how it actually works. Relying on fair use can be the quickest way to find yourself on the wrong side of a copyright infringement claim. So if you want to use something, or a portion of something, that someone else created and intend to rely on fair use remember this one simple guideline: DON’T DO IT. If you don’t get the proper assistance and analysis ahead of time you may be in need of expert legal counsel afterwards.

© 2016 John V. Robinson, P.C.