What the Fox? The Three Musketeers of Intellectual Property

People who are asked to describe intellectual property laws generally recite Copyright, Patent and Trademark. I think of them as the Three Musketeers of intellectual property. What the Fox do they protect?
This month, copyrights.

Who Invented Copyrights, and Why

Our copyrights started as "An Act For the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or purchasers of such copies." The law is a statute of Queen Anne of England, enacted 1710, arising out of events enabled by the 1707 union of Scotland and England. Prior to the unification, a guild called the Stationers Company (formed 1357) controlled printing in England: no guild member would offer to print a book which had been printed by another member. Without competition, authors' fees were kept low; printers' profits were kept high.

Unification let authors travel freely to Scotland. English authors took manuscripts to Scottish printers, paid less, made more and reduced English printers' revenue. Looking to stop that competition, English printers lobbied to legalize what the guild had been doing—reserve the right to make copies for English printers.
The Stationers Company, however, was not careful of what it wished for: the Statute of Anne gave authors the right to copy their books, not publishers.

The Constitution Convention of 1787 agreed with the idea of authors owning their writings (and inventors their discoveries); but, left the details to Congress: Article 1, Section 8, Clause 8 gives Congress the power: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress enacted the first federal copyright law in May 1790, and the first work was registered within two weeks.

The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. "The sole interest of the United States and the primary object in conferring the monopoly," this Court has said, "lie in the general benefits derived by the public from the labors of authors." Twentieth Century Music v. Aiken, 422 U.S. 151, 156 (1975)

Creativity for the general public good, with a fair return for the creator. (Notice that the term "author" means the creator in the context of copyright law.) These are the two values copyright law seeks to uphold, express, advance and protect. Indeed, the most common misunderstanding regarding the right to make copies of the results of creativity is that the creator is paramount. In fact, the author's monopoly is a tool invented to accomplish the primary goal of "Promot[ing] the Progress of Science and useful Arts," to quote the Constitution.

Anyone who relies on copyrights for a living, for fun or a fun living would serve themselves well to memorize this fact: my right to make copies of my work is subservient to the social and cultural benefits which flow from my work. To foreshadow a later topic, the entire field of "fair use" of copyrighted works depends upon whether the original work is transformed to fulfill a purpose other than the original's.

What Are Copyrights?
Federal law mandates that "Copyright protection subsists … in Original works of authorship Fixed in any Tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 USC 102(a).
Copyrights protect expressions: not ideas. Ideas are free. And, while registration of a copyright is critically important, copyrights exist as the intangible, personal property of the creator(s) as soon as ideas are expressed in Original works of authorship Fixed in any Tangible medium.

"Original Expression," in copyright, means simply that the author created the work independently, and that the work possesses a minimal degree of creativity. Independent creation means you made your work without referencing anything other than works in the public domain and your own imagination. The creation need not be aesthetic, masterful, desirable, saleable or even new! If you and I each write the same poem, word-for-word, without having seen the other's poem, we each have an original, and we each own copyrights in our poem.

Since ideas are free, the ideas must be separated from the expression to determine what it is that is actually owned. This is one of the trickiest tasks in copyright law. Writing a story of a Southern girl that begins before the Civil War and ends after the Civil war is an idea anyone may use, even if you got the idea by reading Gone With the Wind. The more your story takes details from Gone With the Wind, however, the closer you get to infringing the book. It is virtually impossible to know in advance where the idea ends, and how many details matter: 1. The travails of a spoiled, rich, Southern girl; 2. in love with a man; 3. who is devoted to her neighbor, he marries; 4. while the protagonist meets a rogue who understands and wants her; 5. then the Civil War disrupts life; 6. she make a dress out of drapes; 7. tills the land; 8. desperately hungry; 9. still yearning for her early love, she drives away the man 10. while Atlanta burns. Rely on your intuitive answer to "how would I feel if my work was used that way?"

Original	Not Original
Anything from your imagination Day-dreaming doodle. Whistling-while-you-work. Everybody-come-here-for-a-picture snapshot. Your notes from a meeting.	Procedures, processes, systems, methods of operation, concepts, principles of science or Nature, formulae or discoveries. Familiar symbols or designs. Variations of typographic ornamentation, lettering, or coloring. Mere listings of ingredients or contents. Facts, like coin prices, weather data. Standard calendars. Height and weight charts. Tape measures and rulers. Lists or tables taken from public documents or other common sources.
Modifying an existing work to which you own copyrights or are otherwise entitled to use (by license, or as a public domain work). The change(s) need not be striking, unique or ingenious—modest and minimal are enough. For example, a dramaturgist's changes to a play.
Original selection, arrangement or combination of works that are unprotected in and of themselves, such as yachts for sale info listing.	Titles, names, short phrases, and slogans are not long enough to be original.
	Advertising "product shot" photograph.

"Fixed" means that what you created is not ephemeral; it cannot change in a short period of time.

Fixed	Not Fixed
Ink absorbed into paper.	Ice-sculptures and Snowmen. They melt.
Graphite darkened paper fibers.	Sand-castles. They blow or wash away.
Dried paint.	Whistling or speaking or singing.
Computer data on a hard disk.	Computer data in random access memory.
Hands leave clay; Chisel cuts stone or wood.	Dancing.
Light strikes photosensitive silver gelatin	Pantomiming.

"Tangible" is anything you can touch. You do not need to be able to see the work. Original expression on microfilm is copyrighted whether you have a viewer or not. Images on photographic film are copyrighted before they are developed. Willard Wigan's micro sculptures are copyrighted even if you don't have a magnifier.