Artists and writers are often surprised to learn that copyright is automatic – that is, nothing needs to be done to claim copyright protection. Although additional rights are provided if the work is registered with the U.S. Copyright Office, legal protection is guaranteed once a work is created – which is the day it is “fixed in a tangible medium of expression.
What does it mean when a work is fixed?
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 Copyright Act of 1976 requires that the work must 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 a song that is recorded on audio tape, a story that is printed on paper, a visual image that is captured on photographic film, or an e-mail message that is stored in a computer. Works that are not fixed would include a speech that is not transcribed, a live performance of a song or live broadcast of a television program that is not simultaneously recorded. For example, in a case involving the National Basketball League, a federal court determined that a live basketball game (not the video broadcast) was unprotectible 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 only be protected 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.