Mention copyrightable works and you probably think of literary works. By far the most frequently protected of the eight categories of “works of authorship” protected by United States copyright law are literary works. Generally, a literary work is what it sounds like: a novel, screenplay, or fictional story. But copyright law also protects computer software, literary characters, and documentaries depicting historical events, subject to some limitations.
Depictions of historical and factual events in literary works are protected under copyright law, but only to the original elements of the work. For example, an author could not protect the factual research she compiled for the documentary; remember, facts are not copyrightable. However, a documentary told from the prospective of a fictional character discussing true events would be protected because that would constitute an original expression of the facts. Also, the selection and arrangement of events discussed by the work would also be original elements.
Literary characters are copyrightable under current US law. However, the character must be sufficiently original. For example, if I write a book about a young boy living in London and who, because of his magical powers, attends a school for other magic children, it probably would not constitute an infringing work. However, if the boy’s name is Harry, he attends a school called Hogwerts, and excels at the sport Quiddictch, I would soon receive a letter entitled “cease and desist.” The point of the hypothetical is to show that the more developed the details about a character, the stronger the copyright protection will be.
Copyright law also provides thin protection for computer software, which was first contested in the 3rd Circuit Court of Appeals by Apple Computers. In that case, the defendant copied Apple’s object code in order to create and sell equipment that would be compatible with Apple computers. While it was a landmark case, today’s software companies rarely rely on copyright law to protect their computer software. Instead, companies look to trade secret law, contract law, and implant anti-copying technology on their products to prevent copying.
Recently, The Copyright Act has extended its definition of literary works to include semiconductor chip designs and databases. However, authors seeking protection for these works will still need to meet the requirements of sufficient originality and fixation.
Next week we will talk about music.
Gary Brophy and Janise Marvin made substantial contributions to this post.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.