Copyright and Intellectual Property in the Digital Age: Copyright by Subject

Architectural Works: Architectural plans, models, and blueprints were copyrightable under the Copyright Act of 1909 as "drawings or plastic works of a scientific or technical character” as well as the Copyright Act of 1976 as “pictorial, graphic, and sculptural works.” However the buildings themselves were not thought of as protected by copyright (with the exception of monumental non-functional works like Saarinen’s Gateway Arch in St. Louis – this is protected as a sculptural work). Functional structures gained protection in 1990 under the Architectural Works Copyright Protection Act (AWCPA).  Keep in mind that the design may also be patented.  But the copyright of an architectural work does not prevent others from creating pictorial representations of that work (photos, paintings, etc.) if the building or its features are publicly visible (17 USC 120a). Learn more about architectural copyright protection from AIA.

Art Works (Pictorial, Graphic, and Sculptural):  In addition to fine, graphic, and applied arts, this category protects examples of visual arts including but not limited to maps, murals, collages, models, and technical and mechanical drawings.  The protections also apply to art in public places. However the law does make a distinction between “useful articles” or objects that have a utilitarian function, like furniture or clothing, and the ornamental aspects of that design.  Even though the functional aspects of these objects are not copyrightable, these types of objects might be protected by other laws such as trademarks or patents.    What about images made from public domain pictorial, graphic, or sculptural works?  In order to be protected by copyright they must include “Elements of originality ... But 'slavish copying,' although doubtless requiring technical skill and effort, does not qualify” (Bridgeman Art Library Ltd. v. Corel Corp., 36 F. Supp. 2d 191, 197, S.D.N.Y. 1999)

Computer Programs were first federally protected by copyright in 1976 as literary works.  "The copyright law does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design."  But copyright does protect against literal (the exact copying of source code) and non-literal infringement (the copying of the "structure of essence" of the program).  Learn more about how to register computer programs for copyright

Dance and Choreography: The 1976 Copyright Act was the first U.S. law to make choreography copyrightable, but not all types of choreography are covered by this act (Copyright Act, 17 USCA § 102, 1976). Dance that qualifies demonstrates creative expression akin to a theatrical performance, e. g. dance as a composition executed by skilled performers, artists, and choreographers. This also includes abstract movements like those performed in modern dance. This is why dance steps or social dances like the tango or ballroom are not copyrightable. “Functional choreography” such as workouts or fitness routines are also not protected by copyright. Because choreography often incorporates well-known steps, the combination of these steps must express sufficient creativity and originality.

Photographs courtesy of the New York Public Library Digital Collections , the Digital Public Library of America and Europeana.

Literary Works: Works that are commonly registered in this category include books, periodicals, manuscripts, research articles, and dissertations, but also blogs, translations, and interviews.  As an author you can control where and how your work is published, accessed, and how or if it can be re-used.  However, be mindful of publication and licensing agreements and contracts.  Negotiating and transferring these rights to a publisher means thinking about what rights you want to retain such as the right to make derivative works, perform or display the work, or deposit the work in an institutional repository.  

Motion Pictures: Film, both analog and digital, is protected by federal copyright law.  There are some legal exemptions and best practices that allow copyrighted film to be used in certain situations.  Showing film in the classroom is allowed through the Face to Face teaching exemption (17 U.S. Code § 110). However other public film screenings require public performances rights (PPR).  Orphan films, or films whose copyright status is unknown, also pose a huge challenge, particularly for preservation.  The Center for Media & Social Impact published the following best practices for Documentary Filmmakers using copyrighted material for various scenarios.

Music: With music copyright there are two things to consider: the copyright of the musical composition and the sound recording of that composition.  Like other copyrightable works, “fixity” matters when determining copyright duration.  A work is fixed when it is documented or recorded in a stable form.  Sound recordings were not granted federal copyright protect until the Sound Record Act of 1971 (Sound Recordings Act, Pub. L. No. 140, 85 Stat. 39, 1971).  When artists record cover songs, they seek permission from the copyright holder of the musical composition, not necessarily the sound recording.  However copyright infringement can be tricky for music, as demonstrated by the 2015 litigation over Robin Thicke and Pharrell Williams’ song “Blurred Lines” and the suit brought by the estate of Marvin Gaye for infringing on protected elements of “Got to Give it Up.”  Read more about the decision here.

Photography: The copyright of a photograph is distinct from the copyright of the photograph’s subject.  Be mindful of taking or using photographs of famous people or photos that infringe on privacy. Photographs of 2-D works (like paintings) in the public domain are usually not protected by copyright because faithful reproductions are not “sufficiently creative."  But if a photographer is taking a picture of a 3-D object, like a sculpture or a building, that photographer is making choices about how to stage or compose that photograph, strengthening their claim to that photograph's copyright.  What about a photograph of a photograph?  Read more about the work of Sherrie Levine.

Photographs courtesy of the New York Public Library Digital Collections , the Digital Public Library of America and Europeana.