Intellectual Property


Copyrights protect creative expressions from unauthorized reproduction.

  • Only the original expression though. All the ideas and facts of a work immediately go into the public domain. 17 U.S.C. § 102.

The power to regulate copyrights comes from Article I, Section 8, Clause 8.

For one to have a copyright, the work must be:

  1. Original
  2. Work of authorship
  3. Fixed in a tangible medium of expression
  4. Capable of reproduction and human readable

Copyrights must be registered to file a lawsuit, and there are perks to having registered the copyright beforehand.

Copyrights last for the author's life plus 70 years.

Work of Authorship

Works of authorship are defined in 17 U.S.C. § 102:

  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;
  7. sound recordings; and
  8. architectural works.

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

It does not have to be fixed for very long. Merely loading it into RAM is sufficient.


“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘’copies” includes the material object, other than a phonorecord, in which the work is first fixed.


Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.


Originality is a requirement to copyright your work.

To be an original expression, it must only be minimally creative.

Scènes à Faire

The scènes à faire doctrine says you cannot protect generic plot lines or themes.

Having someone create something like your work independently does not invalidate the original's originality.


A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

While facts are not protectable, compilations are. However, it must have at least some creativity. This is a very low bar however.

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340

To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.

Basically, it has to be anything more than an alphabetical list of people. Categorize it or something.

Idea-Expression Dichotomy

Copyright only protects expressions, not ideas or functions.

  1. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Merger Doctrine

If an expression is indistinguishable from the underlying facts, the merger doctrine prohibits copyright protection. E.g., maps.


To be entitled to copyright protection, characters must pass a three-part test from DC Comics v. Towle:

  1. Character must have "physical as well as conceptual qualities."
  2. The character must be "sufficiently delineated" to be recognizable as the same character whenever it appears.
    • It must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.
  3. The character must be "especially distinctive" and "contain some unique elements of expression."
    • It cannot be a stock character such as a magician in standard magician garb.

Copyrights can be licensed expressly or impliedly and can be exclusive or non-exclusive.