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Under copyright law, copyright protection will be given to in original works of authorship fixed in any tangible medium of expression.  So what does this mean?

Works of Authorship

Any work that qualifies as an original work of authorship is copyrightable, irrespective of whether it is high art, popular art, commercial art, idiosyncratic doodling, or any other form of expression.  According to the Copyright Act, works of authorship can include, but are not limited to, the following categories:

  • Literary works
  • Photographic works;
  • Musical works, including any accompanying words;
  • Dramatic works, including any accompanying music;
  • Pantomimes and choreographic works;
  • Pictorial, graphic, and sculptural works;
  • Motion pictures and other audiovisual works;
  • Sound recordings; and
  • Architectural works.

These rights prevent unauthorized use of the work, whether by reproduction, performance, broadcast, or otherwise.


In order to meet the originality requirement, a creative work must require independent creation and a modicum of creativity.

  • Independent creation
    • Must be the creator of the work
    • Cannot have “substantial similarity” to a work already protected by copyright
  • Modicum of creativity
    • Does not require a great amount of creativity

Furthermore, a person cannot claim originality to facts. Facts do no owe their origin to an act of authorship, and facts, being in the public domain, are available to everyone.

Tangible Medium of Expressions

In copyright law, 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 short duration.

Until a work is fixed, the work will not be protected by any copyright laws.

What is Copyright Infringement?

Copyright infringement is the unauthorized use of a copyrighted work. It is up to the copyright holder to, upon learning of the infringement,  come forward and enforce his/her exclusive rights. Piracy, such as peer to peer sharing of music and videos, is one of the most notorious forms of copyright infringement.

Fair Use Defense

The Fair Use defense allows for the limited use of a copyrighted work without a need to obtain permission from the owner/author. For example, using a clip from CNN discussing  the Own Your Power Lawsuit against Oprah, Harpo and others, and adding original commentary about the clip and case would be considered an example of fair use.   Another example is when a newspaper or television broadcast displays copyrighted material for the purpose of reporting the news.

Some instance  when permission is not needed is if the copyrighted material is used for the  purpose of:

  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship, or
  • Research.

This is not an exhaustive list, however.  For advice on whether a potentially infringing use may qualify as fair use, contact the copyright attorneys at The PLK Law Group today.  The following four factors are what Courts focus on when considering fair use as a possible defense to copyright infringement:

  1. What is the purpose for using the copyrighted work? Is it or a commercial nature or for nonprofit educational purpose?
  2. What is the nature of the copyrighted work?
  3. How much of the copyrighted work are you using? Clearly, the smaller the amount, the least amount of scrutiny.
  4. What is the effect of the use upon the potential market

The defendant bears the burden of proving that the use was fair and not an infringement. However, the plaintiff asserting copyright infringement must present a prima facie case of copyright infringement before the burden shifts to the defendant.

The PLK Law Group advises on all aspects of Copyright, from ownership, exploitation and licensing to enforcement of copyright where potential for infringement exists.  The PLK Law Group counsels clients as to whether copyright protection is available for a work, obtaining copyright registration and determining whether a particular use of copyrighted materials is permissible under the copyright law.  The PLK Law Group is well-versed in all aspects of protection of copyrightable works, including the Digital Millennium Copyright Act.

To learn more about how to protect your works of authorship, please contact The PLK Law Group today.