Copyright Is Automatic

A work is protected once its fixed

Artists and writers are often surprised to learn that copyright is automatic; that is, nothing needs to be done to claim copyright protection. Indeed, copyright protection exists from the moment that a work is created.

Although additional rights are provided if the work is formally registered with the U.S. Copyright Office, legal protection is guaranteed once a work is created and exists in a fixed, tangible medium of expression.

What Does It Mean That a Work Is “Fixed”?

Copyright protection extends to original works of authorship fixed in a tangible medium of expression. A work is fixed when it is embodied in a tangible form that is perceptible by the human senses, either directly or with the aid of a machine.

The distinction is that copyright law does not protect ideas, nor does it protect methods of operation or systems. The Copyright Act of 1976 requires that the work be embodied in a form that is "sufficiently permanent or stable so as to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration."

Examples of works that are fixed are endless. For example, consider a song that is recorded on audio tape. (Different from a tune you thought up, that exists only in your head). Or consider a story that is printed on paper. (Different from a story you created and have told your children orally before bedtime). Or consider a visual image that is captured on canvas. (Again, different from an idea for a beautiful painting that you might create some day). Fixed expressions receive copyright protection, whereas non-fixed expressions do not.

What Work Is Not Considered “Fixed”?

Works that are not fixed would include a speech that is not transcribed, a live performance of a song, or an idea for a television show. Not “fixing” an expression can have very real consequences. In a case involving the National Basketball League, a federal court determined that a live basketball game (not the video broadcast) was unprotectable under copyright law. However, the televised broadcasts of the underlying games are copyrightable as long as they are simultaneously recorded.

The requirement of fixation does not mean that a work must be mass produced or published. A handwritten diary is fixed and meets the requirement of copyrightability.

Prior to the 1976 Act, a work would be protected only if it was fixed in a form that could be directly seen or read by the human eye. If the same rule was in effect today, the makers of motion pictures could not receive compensation for DVDs because the viewer cannot see the work by looking directly at the DVD disc. The drafters of the Copyright Act of 1976 found the requirement of visual perception to be unjustified and extended protection to works of authorship that can be perceived with the aid of a machine.

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