Almost anything can constitute copyrightable subject matter provided it is fixed in a tangible medium, which means you can see it, hear it, and/or touch it.

However, a copyright does not protect an idea–only the author’s particular expression of that idea. For example, you cannot copyright the idea of a garden sculpture of a little girl sitting on a park bench wearing a floppy hat. But, once you have made a sculpture of a little girl sitting on a park bench wearing a floppy hat, your expression of that idea will be protected. This does not mean that others cannot make sculptures using the same idea–a girl on a park bench wearing a floppy hat. It does mean, however, that if they copy your expression or their work is substantially similar in the eyes of the ordinary observer, their work may be an infringement of your work.

In the United States, the owner of the copyright can register a work with the Copyright Office of the Library of Congress if they submit a properly completed application form, nonrefundable filing fee for each application (for current fees, please check the Copyright Office Web site here, and a nonrefundable deposit of the work being registered. The deposit requirements vary depending upon the nature of the work, but generally speaking, two complete copies are required.

The Copyright Act lists the types of authorship which are protected under the Act (17 U.S.C. § 102(a)).

• Literary Works. This category includes the obvious, such as books, newspaper articles, periodicals and manuscripts, and the not so obvious, such as catalogs, directories and computer programs (specifically recognized as copyrightable literary works by the Computer Software Copyright Act of 1990).
• Musical Works. This includes both the music and the lyrics of a song, although the lyrics alone could be separately copyrighted as a literary work.
• Dramatic Works. Dramatic works, by definition, portray a story or convey some type of theme through the use of dialogue or acting. Examples include theatrical plays, screenplays, works of musical theater and opera.
• Pantomime and Choreographic Works. These are dramatic presentations without words, principally dance, but the protection does not extend to social dance steps.

A copyright does not protect an idea–only the author’s particular expression of that idea.

• Pictorial, Graphic and Sculpture Works. This category includes two-dimensional and three-dimensional works of fine, graphic and applied art, photographs, prints, art reproductions, maps, globes, charts, technical drawings, diagrams and models. Not so obvious examples are labels on products if they contain more than just trademarks or short phrases or lists of ingredients. Also included are advertisements, dress and fabric designs and popular art, which encompasses a broad range of decorative or novelty items from jewelry to cemetery monuments–however, the copyright protects only the esthetic, ornamental aspects of a work, not its functional aspects. For example, you cannot copyright a spoon, because it is a useful article. However, if you apply a unique design to the handle of a spoon, that design, as applied to a spoon, can be copyrighted.

The first step in getting permission to use a copyrighted work is to determine who owns the copyright.

• Motion Pictures and Other Audio Visual Works. Such works include film strips, slide shows and their electronic equivalent such as video tape, video disc and interactive media. New CD-based works that contain both audio and audio visual segments may also qualify as audio visual works.
• Sound Recordings. The category of sound recordings includes records, tapes and CDs.
• Architectural Works. Architectural plans have been copyrightable as “pictorial, graphic and sculptural works” for some time. The Architectural Works Copyright Protection Act of 1990 brought architectural structures within the definition of “architectural works,” which include the overall form of the building, as well as the arrangement and composition of the spaces and elements of design. However, it does not include individual standard features like common windows, doors and other staple building components.
• Compilations. A “compilation” is a work formed by collecting and assembling preexisting material, for example, a collection of photographs depicting a particular theme, such as apartment living in the South, as photographed by numerous photographers. The copyright protection for the compilation, however, extends only to the material contributed by the author, not to the preexisting materials. Therefore, while the copyright will protect the selection, coordination or arrangement of the collection, it does not grant protection to the underlying individual photographs. If you wanted to create such a work, “Apartment Living in the South,” you would still need permission (i.e., a license) from the individual photographers to include their works.
• Collective Works. A “collective work” is a work such as an anthology or an encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled together into a collective whole. A collective work is a form of compilation in which the materials collected are individually copyrightable.

Obtaining Permission to Use a Copyrighted Work

The first step in getting permission to use a copyrighted work is to determine who owns the copyright. Often a good start can be made by looking at the copyright notice itself. It will contain the familiar “c” in a circle © notice, along with the date of creation and the name of the copyright owner.

Second, if you want to own the copyright, you will need an assignment of the copyright from the owner. If you don’t want to own it, but rather want to use the work for a specific purpose and for a specific time, you will need a license. For example, with respect to the photograph of an apartment building, you may only want rights for one advertisement to be published, for one month, on the Internet. In that case, you will need a written license describing the rights that you are obtaining and the duration of those rights. Bear in mind that the copyright owner can grant you an exclusive license or a nonexclusive license. In the case of the former, you will be the only party to use the work; in the case of the latter, the same rights that you are obtaining may be obtained by others from the copyright owner. Remember also that the license rights are as divisible as the copyright itself. For example, the owner of a copyright in a photograph may license one entity to reproduce the photograph in advertising, and license another entity an exclusive right to use the photo in a derivative work, such as a photograph reprinted on a coffee mug. Depending upon your intended use, a simple letter of permission may suffice.