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The Subject Matter and Scope of Copyright

Congress, recognizing the impact that future technological advances will have on the law is impossible to predict, passed the Copyright Act of 1976 which is broadly based and open-ended. With technological advances come new means of expressing, recording and disseminating ideas. The VCR is an example of such a technological advance. In addition, Congress has identified a new category of artistic work as protectable under the copyright laws: architectural works. At the same time, the traditional categories have been preserved. These traditional categories include the following:

  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; and
  7. sound recordings.

The Copyright Act clearly states that the above list is not exhaustive; rather, it is illustrative only. This indicates Congress' recognition of the artist's and the inventor's ability to create new means of expression. In addition, there are only two basic requirements that must be met for an expression to be entitled to protection against unauthorized reproduction. These two requirements are:

  1. the work must be ORIGINAL, and
  2. the work must be FIXED in "any tangible medium of expression."

The requirement of originality means simply that the work may not have been copied from someone else. The courts have held that to be original, a work must possess originality of expression. Slogans, names, titles and simple phrases, symbols utilizing common geometric shapes, and certain designs do not possess originality of expression and therefore are not entitled to copyright protection.

Judges, in deference to the age-old adage "beauty is in the eye of the beholder", have refused to require additional elements such as ingenuity, novelty or artistic merit before upholding copyright protection. Therefore, mechanical drawings and simple freehand sketches, for example, are protectable under copyright.

The requirement that the work be fixed in tangible form means that it is embodied in a copy or phonorecord by or under the authority of the author, and is sufficiently permanent and stable to permit it to be perceived, reproduced, or otherwise communicated for more than a merely transitory period of time.

Ideas Cannot Be Protected by Copyright:

Because the free exchange of ideas is an essential element of a democratic society, ideas themselves cannot be monopolized via the copyright laws. It is only the artist's particular expression of his or her ideas which may be protected. Therefore, it is permissible under the copyright laws for someone to express the same ideas to others, even when the ideas used represent a new concept, developed by another author.

For example, if one artist is known for his original works of art depicting, for example, penguins in tuxedos, it is probably not an infringement of copyright for someone else to copy the theme of penguins in tuxedos. The U.S. Supreme Court has upheld this interpretation in a case in which it stated that a painting based on the same theme as a copyrighted work, does not infringe the copyright if it's only similarity is the use of a common thematic concept. However, the more bizarre and original the theme (bowling balls in tuxedos on the French Riviera?), the more likely it is that a court will carve out an exception, or find a rule of law or statute with which to protect the artist's original creation. Trademark law ,the common law of unfair competition or misappropriation law are other fields of law which might come into play in certain instances.

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