In my first post, some off the wall lawsuits reminded us of the importance of avoiding legal pitfalls. This week we will address some copyright basics. As a reminder, this series is provided as a general educational resource ONLY. It is NOT legal advice. If you have any legal questions, please see your attorney.
Let’s start with the copyright basics.
The U.S. Constitution (Art. 1, Sec. 8, Clause 8) provides the legal framework for Copyright protection which gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Certain exclusive rights are provided to authors over their works to which they may use to their financial advantage. The purpose is to encourage individuals in their pursuit of intellectual and artistic creations
What is copyright?
Copyright is a form of protection provided by the laws of the United States
(Title 17, U. S. Code) to the authors of “original works of authorship,” including:
- literary,
- dramatic,
- musical,
- artistic,
- and certain other intellectual works.
- This protection is available to both published and unpublished works.
What does it protect?
Copyright protects the author’s exclusive right to reproduce and publish her original work, perform, distribute copies, adapt the work, and authorize others to do the same.
What type of works are copyrightable?
“Original works of authorship” that are “fixed in any tangible medium of expression.” As of January 1, 1978, the protection attaches to original works as they are fixed in a tangible form of expression, such as handwriting as it flows from the pen onto the paper, audiotape, computer, typing, or radio. Because ideas or concepts are not fixed in tangible form, they are not copyrightable, but business processes may be subject to patent protection.
Original does not need to be novel to have copyright protection, it just needs to be “independently created,” — not copied. Two authors who do not know of each other could each create works that are identical, and therefore not novel, but both are considered “original” and entitled to copyright protection.
Another required element is creativity which is different from original. Creativity requires that the author intellectually conceived of the work. Most work contains the fairly low level of creativity required. Quality or merit in a literary work is not required for copyright protection.
When a man tried to copyright his fried chicken sandwich, the First Circuit Court of Appeals pointed out that 8 categories of works are protected by federal copyright law
Literary Work
- Dramatic works, including the music that accompanies it
- Musical works, including any accompanying words
- Pictorial, graphic, and sculptural works, Pantomimes and choreographic works
- Motion pictures and other audiovisual works
- Architectural works
- Sound recording
Food recipes were absent from this list and the court rejected the man’s copyright claim outright stating: “A recipe – or any instructions – listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.”
You may not be able to copyright a recipe, but you might be able to trademark its name. So you can recreate the “dish” but can’t take the name. Although you cannot copyright a food dish, or a basic listing of ingredients, a recipe that contains original text may be protected by copyright
Who can make a copyright claim?
The work belongs to the author from the moment it is created in a fixed form. When there is more than one author in a joint work, the authors are co-owners of the copyright unless they made an agreement otherwise. When it comes to a work created by an employee that was commissioned by the author, the employer is considered the author for the purpose of copyright – the Work for Hire exception.
The next article will delve into the Work for Hire exception, transfers of ownership, and fair use among other topics.
(c) 2018 Karen Van Den Heuvel
