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.
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 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.