All copyrighted works originate as ideas, born when authors choose how to express themselves. The slightest exercise of discretion will suffice; just about anything more original than an alphabetical listing of names can qualify for copyright protection. Once having crossed that low hurdle, it remains only for an author to fix her expression in a tangible medium for more than a transitory duration. She must, in other words, record her authorship. After thereby fixing her work—in words, music, pictures, computer code, architecture, or almost any expressive medium—she enjoys the rights afforded by the federal Copyright Act. Copyright thus inheres both in doodles and multi-million dollar movies, in works ranging in creativity from formulaic news blurbs to unprecedented paintings.
Those, copyright’s fundamental features, mark it as a distinct legal entity. Though laypeople often confuse copyrights with patents, trademarks, and other intangible goods, each of those related types of IP corresponds to a unique combination of subject matter and supporting law. [The figure below] illustrates how copyright relates to, and differs from, its nearest legal next-of-kin.
Rather than the points of a compass, [this figure] charts several legal dimensions. The left vertical scale divides IP into two fundamentally different categories. IP above the horizontal divide, such a trademark, has value only insofar as it helps to identify other things of value. Below the divide, in contrast, falls intrinsically valuable subject matter. Ask yourself which type of IP you would want on a desert island; those you would choose fall into “valuable per se” territory. The right vertical scale shows the source of a legal protection. Towards the middle lies state common law, farther out lies state statutory law, and at the extremes lie federal statutory law. Unfair competition straddles all three categories, for instance, whereas copyright depends entirely on federal statutory law. The bottom horizontal scale indicates to what degree a particular kind of IP protects expressive or functional subject matter. Copyright stretches from poems to computer programs, for instance, whereas trade secret covers only commercially useful ideas.
The arrows on the map indicate how rights develop over time. Each sort of IP begins as an idea. From there, different types of IP move in different directions, depending on their subject matter. As a general matter, as the arrows move away from the center of the map, rights grow: more developmentally mature; more powerful; harder to obtain (because the requirements for protection become more stringent and formal); and more public and federal. Copyrights, however, moves relatively quickly and easily from mere ideas to full federal protection.
Figure [[cite]] shows two possible precursors to copyright: common law’s protection of literary property or state ‘s statutory protection of unfixed expressive works. The former legal right expired as of January 1, 1978, when the Copyright Act preempted it, and appears here solely as a historical marker. The latter legal right has won general recognition in California, which offers copyright-like protection to unfixed works of authorship, and narrower protection in New York, which has enacted criminal sanctions on fixing a public performance without permission and with the intention of profiting therefrom. In most cases, therefore, ideas now speed directly to copyright protection without making any intermediary legal stops.
Notably, [the figure above] does not include what some courts and commentators have called “common law copyright.” As the Supreme Court established long ago, no such thing exists. The common law’s protection of expressive works traditionally applied only to unpublished works; it did not give authors anything like copyright’s exclusive publication rights. [The above figure] thus eschews “common law copyright” as a misleading label.
The protean nature of the common law admits other interpretations of its scope, granted. New York courts have in recent years created—”recognized” would overstate the case, given that the courts did not claim to uphold any customary practice—a common law right against the unauthorized duplication of publicly-distributed sound recordings made prior to February 15, 1972, the date on which federal copyright protection first extended to such works. The decisions of only one state’s courts hardly suffice to define the common law, however, especially when all other states to consider the question have reached a contrary conclusion. It remains a bit cloudy whether the common law’s protection of literary property extends to unfixed works, too; several courts have denied that it does while some courts have hinted at a broader right. Here as generally, it seems wisest to attribute to the common law only those rules that have won express and wide approval.
[NB: The above text comes from chapter 1, § B of my draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good. I will soon upload a PDF of the entire chapter, including footnotes. I welcome your comments.]