a closer look: what copyright protects


Copyright Act section 102 describes the “subject matter” of copyright. Like most statutory language, it might make your eyes glaze over and your thumbs race to Instagram. So we’re gonna zero in on just three key points that we feel are at the heart of the matter for visual artists. (And if you’re feeling super ambitious, you can find the whole megillah here.

"Original works of authorship"
from Copyright Act section 102 (a)
“Original” means the artwork must have originated with you. It can’t have been copied and it needs a bit of creativity or newness. “Authorship” means the artwork must have been created by a human’s intentional act—meaning some kind of purposeful causing of the thing to exist. And though an entity (like Disney Corp. for instance) may be seen as author in the eyes of the law, copyrightable works come from humans.

"Fixed in any tangible medium of expression"
from Copyright Act section 102 (a)
This means your artwork is captured in a place that exists out there in the world. Your idea for a painting isn’t fixed or tangible. When you sketch it out, though, your drawing, and later your actual painting, are both fixed (set in one place) and tangible (someone else can perceive them). This includes fixation in an electronic medium. Even if your painting burned up in a fire, a digital scan of it is still “in a tangible medium.”

"In no case does copyright protection for an original work of authorship extend to any idea"
from Copyright Act section 102 (b)
Your copyright applies only to the image as expressed, not the idea embedded in the image. Let’s say you paint a bird, a sparrow on a branch. If another artist paints a sparrow on a branch, you cannot cry foul on the ground that you had the idea of painting a sparrow on a branch first. But the more creatively original your particular sparrow is, the more protectable your image becomes.

For now, we’re inviting you to chew on these few points. Yes, they might seem relatively obvious, but they’re at the heart of more complicated issues like “originality” and “substantial similarity.” These are concepts that come up quite regularly with our clients—artists who are thoughtfully and lovingly cultivating their art brands—and we’re really looking forward to exploring them with all of you.

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Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.