Originality and Copyright Laws

By Grygor Scott

Copyright laws protect a wide range of works, including novels, songs, photographs, movies and computer programs. A copyright holder can file an infringement lawsuit against anyone who uses his work without permission. The issue of originality usually arises in an infringement lawsuit when the defendant claims that the copyright is invalid because the work is not original.

Statutory Requirements

The Copyright Act of 1976 requires copyrighted works to satisfy two basic requirements: They must be “original works of authorship" and be "fixed in any tangible medium of expression.” The fixation requirement is usually straightforward. A work is fixed when a person can perceive it directly or with the aid of a machine or device. Typing, making a recording, or saving a work on a computer disk are common ways to satisfy the fixation requirement. The originality requirement is more complicated.


Federal courts have established a relatively low threshold for originality. In general, originality depends on two factors: whether the author created the work independently and whether the work possesses some degree of creativity. Federal courts have upheld copyrights for works that have displayed minimal creativity. A work satisfies the independent authorship requirement if the author has not copied or paraphrased another work. In theory, a writer could type out "Moby-Dick" word-for-word independently of Herman Melville’s novel and secure a copyright for the work. In practice, the writer would have trouble establishing that he created this exact replication on his own.

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Unoriginal Works

Federal courts have ruled that a variety of works do not qualify for copyright protection because they do not contain original authorship. In most cases, these works consisted entirely of raw data and information available to everyone. Examples of unoriginal works include simple rulers, basic calendars, telephone directories and lists taken from public sources.

The Sweat Theory

Some federal courts have ruled that works containing publicly available factual information are copyrightable if the author has used sufficient intellectual labor -- or "sweat of the brow," as one court wrote -- in creating the work. For example, directories, compilations and maps may be copyrighted if the work’s creator obtains the information through his own efforts. Thus, a cartographer can copyright a map of California that is based on his own research. If the mapmaker has merely copied an existing California map, he cannot claim a valid copyright for his map.

Derivative Works

Derivative works are based on one or more works that already exist. A painting based on a photograph and a collection of short stories translated from French to English are examples of derivative works. The owner of a a derivative work can copyright it if it meets one of two standards: The new work must either contain a substantial amount of new material or differ sufficiently from the existing work. Making minor changes to an existing work will not satisfy the originality requirement. Adding new text or photographs to the existing work or expressing the existing work in a different form, such as choreographing a song, will fulfill the originality requirement so the derivative work will qualify for copyright protection. A copyright for a derivative work covers only the new materials it contains. Its copyright does not protect the pre-existing material or lengthen the length of its copyright.

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What Is Substantial Alteration of a Copyright Infringment?



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How to Know if Internet Images Are Copyrighted

Potentially all internet images qualify for copyright protection. The instant the image is created in a digital form, it qualifies for "common law" copyrights. Common law copyrights come from the old English system of law. Under common law, original works of authorship fixed in a tangible form automatically secure copyright protection. Tangible forms for internet images include digital files, emails and webpages. Therefore, all original internet images in a digital format are copyrighted; the owner is not required to apply for federal copyright registration. Federal registration is optional. The public may still have be able to use the copyrighted images if fair use applies. The fair use doctrine allows others to use the copyrighted work, under restricted conditions and not for profit.

Are Song Arrangements Copyrighted?

A musical composition copyright protects the music and lyrics of any song from the moment it is either recorded in audio format or written in sheet music. This copyright covers the original arrangement of the musical notes in the song. Composing a new arrangement of the music constitutes a derivative work based on the original. Copyright owners enjoy the exclusive right to create derivative works based on their original work. This derivative work is independently eligible for copyright protection.

Song Lyrics & Copyright Laws

Copyright law protects all aspects of an artistic work, as long as the work is original and has been reduced to a tangible medium. Song lyrics, for example, are protected as soon as they are recorded, whether in audio or written form. Although you don’t need to register your song lyrics with the U.S. Copyright Office to enjoy copyright protection, registration makes it easier to prove that you wrote the lyrics before the infringer did and allows you to collect damages without proving economic harm.


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