Introduction -- What can be copyrighted

What is copyright infringement? Consider these examples:

•  A newspaper reporter’s article on an important town council meeting makes the front page. A local radio announcer, without attributing the article to the reporter or the newspaper, reads the lead and several other lines verbatim on his morning news report.

•  The editor of a weekly community newspaper reads a magazine article about a local personality and decides to publish it in the newspaper’s next edition. She makes sure to affix the copyright notice on the article and to acknowledge that the article originally appeared in the magazine, but she never seeks the magazine’s permission to use it.

•  A website copies a photo from an article subject’s Facebook page to illustrate a story about that person without seeking her permission.

In these cases, the radio announcer, the weekly editor and the website operator infringed the rights of the copyright owners of the original works and may be liable for damages.

The 1976 Copyright Law gives copyright protection to creative works — such as the newspaper article, magazine article and freelance article in the above examples — at the moment of their creation. If someone uses a copyrighted work without permission, as the radio announcer, weekly newspaper editor and magazine publisher have, the copyright owner can sue for copyright infringement. Journalists need to know how to protect their works and how to avoid infringing someone else’s copyright.1

 

What can be copyrighted

The Copyright Law grants copyright protection only to “original works of authorship fixed in a tangible medium of expression.” A work does not have to be new or highly creative to qualify as an original work of authorship. It simply must owe its origin to a particular author.

The law also states that a fact is not an original work of authorship. Facts owe their origin to the thing or person that makes them happen. For example, if a reporter wrote a newspaper article about a building fire, she could not copyright the facts about the fire because those facts do not owe their origin to her.

Facts discovered through research, no matter how new and amazing, also do not owe their origin to the researcher. However, the ways facts are recorded — style, choice and arrangement of words — are copyrightable. For example, although an author could not copyright an idea for a new foreign policy strategy, she could copyright her expression of that idea in a newspaper article.

An article containing pre-existing material or data can qualify as an original work of authorship if the material and data are “selected, coordinated or arranged” in such a manner that the end product owes its origin to the author. For example, an article about a federal law that includes quotations and facts from the Congressional Record would be copyrightable if the new arrangement of this pre-existing material constituted an original work of authorship.

A copyrightable work must be produced in a format that can be perceived, reproduced and communicated over time. Newspapers, magazines, photographs and most other forms of media, including the Internet, easily satisfy these criteria. Radio and television news programs are recorded on paper, tape or in digital form, and thus are fixed in a tangible medium of expression.

For example, the U.S. Court of Appeals in San Francisco (9th Cir.) has found that a news service that videotapes news events with its own cameras and licenses broadcast stations and networks to use its “raw” footage during their news programs owns the copyright for the tapes.2


Notes:

1. 17 U.S.C. § 101 et seq. (1976) (1976 Copyright Law governs works created on or after Jan. 1, 1978).

2. Los Angeles News Service v. Tullo, 973 F.2d 791 (9th Cir. 1992).