Defining an Original Work of Authorship

An original work of authorship (OWA) is a substantial and fixed creative work of a non-technical character originated by its author. Clear as mud? Hang on. This definition can be broken down into four basic parts. The following sections outline the requirements that an OWA must meet to be copyrightable.

When courts have to decide whether a specific creation complies with these basic requirements, they narrowly limit their decisions to the special circumstances of the case. These rulings are sometimes inconsistent, depending on when and where they're made. Nevertheless, these decisions provide us with the following general guidelines.

Fixed creation of the mind

An OWA must be the result of creativity, originating in the author's mind and not merely a discovery of something that already exists. Furthermore, the work isn't considered "created" until it's fixed, tangible, permanent, or stable, and reproducible or otherwise communicable. Here are some examples:

• Making a natural-looking plaster-cast replica of a tree trunk to serve as a pedestal doesn't require any mental creativity. But, composing a symphony that suggests wildlife sounds of a virgin forest requires many mental steps to select and arrange sounds in a pleasant composition.

• Giving an ad-libbed speech or improvising a musical composition doesn't result in a fixed creation and doesn't qualify as an OWA unless it is recorded simultaneously.

• Once upon a time, video games were denied copyright protection on the grounds that the moving images only occurred in response to the players' commands and were therefore not fixed and reproducible. Eventually, the courts recognized that coded instructions stored on a computer chip dictate everything on the screen. By manipulating a joystick, the player selects a series of pre-recorded program sequences. Thus, the screen images aren't only recorded, but are also reproducible at will.

For your own protection, you must fix your work as early as possible. If you're developing a teaching method or an aerobic dance routine, have somebody record it as you go. If you created an original knitting design, take pictures of it. Keep track of the date you fixed and distributed your OWA. You'll need that information later.

An OWA must be the result of creativity, originating in the author's mind, and not merely a discovery of something that already exists. Observing something and carefully listing its characteristics isn't an OWA; it's a mere representation of preexisting conditions. For example, the diagnostic of a psychologist that details the personality profile of a patient can't be protected by copyright.

Substantive and nontrivial mental activity

To qualify as an OWA, the work must have significant complexity, scope, length, or duration. To test compliance with this requirement, you have to use different measuring sticks, according to the nature of the work.

Written, pictorial, and nonmusical works must have a certain degree of complexity or length.

• Titles, slogans, maxims, two-verse poems, and reproductions of common geometrical figures don't meet the test. On those grounds, the slogan, "You got the right one, uh-huh," used to promote the Pepsi brand of soda, was denied copyright protection. That was also the fate of the folder icon by Apple Computer, Inc., that depicts a common cardboard folder together with the term Waste Basket to identify a discarded folder.

• A limerick barely passes the threshold of substantiality.

• A simple line drawing of a dove in the hand of Pablo Picasso, however, is certainly complex (and original) enough to get copyright protection.

Sounds are measured with a shorter yardstick than words are. In a musical composition, a single distinctive bar or even one original measure may be sufficient to deserve protection. The four opening notes of Beethoven's Fifth Symphony that are used as a hook throughout the symphony are a case in point. They would have enough substance to deserve copyright protection if they were composed today. Of a more recent vintage is the one measure "hook" of another commercial song used in connection with Pepsi products. Although it consists of only four repetitions of the phrase "Uh-oh" in rap music rhythm, that jingle was declared protected by copyright.

A nonfunctional creation

To qualify as an OWA, the work must not be primarily functional, such as a belt buckle or other useful article. However a degree of functionality in a work isn't necessarily fatal to its protection.

An architectural drawing has a function — to guide the construction of a building. But its functionality resides in the use of the drawing and isn't inherent in the drawing itself. The drawing embodies an imaginative rendition of a non-existing structure, including a representation of its shapes, proportions, arrangements of openings, and other characteristics that reflect the architect's talented vision, and so is copyrightable.

The rules of a board game are unprotected because they're purely functional steps. However, the decorative graphics on a game board, or the design of a chess piece that represents a whimsical character are non-utilitarian, protected creations. Indeed, the ornamental design of a useful article, as distinguished from the article itself, may be considered a visual OWA.

However, that rule applies only if the design can be identified separately from, and exist independently of, the article's function. For example, the shape of a belt buckle — no matter how creative — can't be separated from the buckle and isn't protected by copyright. But a medallion depicting a bucking bronco affixed to the face of a western-style buckle is protected because it isn't a primarily functional element.

An original work

The originality of an OWA doesn't imply that it's new, unusual, or innovative. The work is original if it isn't copied from a pre-existing source, but is independently created. It doesn't matter that the exact same work was created in another place or time by someone else, so long as the author wasn't exposed to or influenced by the earlier work.

If you create an OWA that's based on or incorporates one or more pre-existing works, the copyright attaches only to that part of the OWA that's exclusively yours. For instance, if you write a cookbook, you may select recipes from various sources, including previously published cookbooks. You then arrange those recipes in a sequence and format of your choice, describe them in your own words, and add comments and illustrations — all mental steps that together constitute an OWA protected by copyright. If you transcribe the recipes as you find them in a cookbook (with the authors' permission) you get no copyright in the copied text. The recipes themselves are mere functional processes that aren't protected by copyright.

Works without copyright protection

Categories of works that don't benefit from copyright protection include:

• Works generated by the U.S. Government. Congressional records, census data, maps issued by the Department of the Interior, and so on.

• Information in the public domain and containing no original presentation. Calendars, scientific charts or displays, or statistical charts.

• Clothing designs. Fashion designers must resort to design patents to protect their creations.

• Typeface designs. However, computer programs used to generate unprotectable typeface designs can be protected by copyright.

• Unsubstantial works. Titles, names, short phrases, slogans, common symbols and designs, mere listings of ingredients or contents, bumper stickers, and traffic signs.

• Transitory works. Unrecorded improvised speeches, radio and television broadcasts, and dramatic or choreographic performances.

Whether a particular work falls into one of these exceptions isn't easily resolved because you can't apply any defined rule of thumb. Prior court decisions are narrowly drawn on the particularities of each case. Lawyers and judges must rely on common sense and a continuing familiarity with legal precedents when they give opinions or rulings on these issues.