Copyrights can cover a wide range of creations, ranging from photographs and art work to computer software. Section 102(a) of the Act categorizes subject matter eligible for protection into eight categories:1) literary works (including computer software, object code, ROM and operating system programs), 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, 7) sound recordings, 8) architectural works. This list is illustrative and not absolute. Additionally, section 101 of the Act further defines five of these categories: architectural works; literary works; pictorial, graphic, and sculptural works; motion pictures and audiovisual works; sounds recordings.
Copyright also protects derivative works. Derivative works are works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole, represent an original work of authorship are also derivative works. The key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.
Collective works and compilations are also protectable and are defined in Section 101 of the Act. A collective work is periodical issue, anthology, or encyclopedia, in which a number of contributions, consisting of separate and independent works in themselves, which are assembled into a collective work. A compilation is a work formed by the collection and assembling of preexisting materials or of data one selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship (includes collective works); keep in mind that the arrangement of the information is very important.
One must remember that a copyright protects an author’s expression of an idea, but not the idea or facts themselves. For example, if you take a picture of an item, the item itself is not protected, but what is protected is how you portrayed the item through light, positioning or any other effects. Section 102(b) of the Act states that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principal, discovery, regardless of form in which it is described, explained, illustrated, or embodied in such work.”
Additionally a copyright may be unattainable if when the subject matter that one is seeking to be protected is very narrow. If there is only one form of expression, or at best only a limited number of possible expressions, then to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance and prevent the use and growth of that work.
Furthermore, if a work is functional, a copyright will not be granted unless the non-functional part can be separated from the functional part. In that case the non-functional part will be granted the copyright. For example, fashion is not copyrightable, because you wear it (functional), but patterns and pictures/graphic designs on shirts may be copyrightable because they can be separated from the functional aspects of the garment.
Initial Copyright Evaluation
Bay State IP will prepare and electronically file your trademark application with the United States Copyright Office. A copyright application filed by Bay State IP ensures that proper filing procedures are utilized and that all elements of the process are properly executed in order that the trademark prosecution to registration process is commenced smoothly. It costs $35 to file a copyright application, if it is done electronically, and it can take a few months for Copyright Office to process the application.