Does something have to be original to be a work? I've read the multiple definitions of 'originality' regarding copyright, and I am still not convinced whether something has to be a work first for it to classify as possibly an original one if that's the case. So, for instance, can a speech be called original if the one that is giving the speech has not copied someone else's work? Can it not be called original (even if it is), if it's not a work (fixed)?
In united-states copyright law, anything that is of one of the broad general categories that can be protected by copyright is said to be a &quot;work&quot; whether or not it has been &quot;fixed in a tangible form&quot;. If a person sings a song, never having written it down or recorded it, the song is a &quot;work&quot; but has not been fixed, and is therefore not protected by copyright. The same would apply to a speech or a poem that has been recited but never written down or recorded, or a dance performed but never notated or recorded. They are all works, but none have (yet) been fixed, and so there is no copyright protection. All this will also be true in any country that adheres to the Berne Copyright convention, although the word &quot;work&quot; might be translated into another language. If someone later writes the work down, or records it, then it will have been &quot;fixed&quot;, and copyright protection will be available provided the other conditions are met. Whether a work is original is a separate issue from whether a work has been fixed. If person A makes up a song and sings it without recording it, it is original but not fixed. If person B hears it and writes it down, it is now fixed, but not original to B. A will then have the copyright. In copyright law &quot;originality&quot; usually means that a work is the separate creation of a person, not copied from the work of some other person. Note that a work may quote or imitate previous works, or use portions of them in some way, and still be sufficiently original for copyright protection. However the term &quot;original&quot; is sometimes used to mean &quot;creative&quot;. A mere list of numbers in numerical order is not creative, and will not be protected by copyright (in the US and countries with similar laws). A list of all the names of people in a given town or area, in alphabetical order, is not creative enough to be protected by copyright (see Feist vs Rural). Courts and other writers on copyright sometimes express this by saying the work is not &quot;original&quot;. Similarly, a simple geometric design, such as a white square on a black background, is not creative enough for protection, and again this is sometimes expressed by saying that it is not original. A work must be both original and creative to be protected by copyright, although it need not be very creative nor totally original. The rules on originality and creativity vary by country. I am here following US law, but the law of quite a few other countries is similar on these points. The term to look for what is counted as original and protectable is often referred to as threshold of originality. This is what I have referred to as &quot;creativity&quot; above. This is related to the question and answer at Is a work copyrighted on fixation or publication? What&#39;s the difference? How is it proved? recently posted.
Derivative work The Kenku first appeared in Dungeon Magazine 27 in 1991 and appears to be an original work as far as I can tell. It, therefore, enjoys copyright protection until 70 years after the author dies - it seems unlikely that the author died before 1950 so the copyright has probably not expired, AFAIK, the author is, in fact, still alive. Your usage is what is known as a derivative work and making derivative works is one of the rights that copyright grants to the copyright holder. You can't do it without permission unless you have a fair use defence: you don't. If you call your Kenku a duck; it's still a Kenku This is the inverse of the well-known duck test much beloved of philosophers and employment-law judges but equally relevant to copyright-law judges. Changing one (or several or even many) aspects of a copyrighted work is still copyright infringement. You are free to write something inspired by the Kenku but once "it looks like a Kenku, swims like a Kenku, and quacks like a Kenku, then it probably is a Kenku".
Four Yes, each version is a derivative work, as mentioned in https://www.copyright.gov/circs/circ14.pdf The following are examples of the many different types of derivative works: ... A new version of an existing computer program
Anything that somebody writes is copyrighted, even if you call it a &quot;press release&quot;. That means that nobody can copy it without permission. If you hand it out to a bunch of people and write &quot;press release&quot;, the only reasonable interpretation of the designation &quot;press release&quot; is that you are granting permission to copy (as well as paraphrase).
Originality requires independent creation plus a modicum of creativity This was answered in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991): originality requires independent creation plus a modicum of creativity. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, &quot;no matter how crude, humble or obvious&quot; it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. [Citations removed] This connection to creativity is explained more in the United States Copyright Office's Compendium at 308.2, citing entirely from Feist. The US Copyright Office presents eleven categories of things that &quot;do not satisfy the creativity requirement&quot;1 (308.2; 313.4(A)-(K)): mere copies de minimis authorship: &quot;copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity&quot; (citing Feist, p. 363); e.g. substitution of pronouns, correction of spelling, three-note sequences, are not sufficiently creative words and short phrases works consisting entirely of information that is common property; e.g. calendars, schedules of sporting events measuring and computing devices (with the exception of separable creative features distinct from what makes the article useful) listings of ingredients or contents blank forms characters scènes à faire familiar symbols and designs mere variations of coloring Canada has taken a different approach canada For a comparative look, Canada has rejected creativity as the hallmark of originality. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Supreme Court considered the standard from Feist but took a different approach: an “original” work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author’s exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be “original” and covered by copyright, creativity is not required to make a work “original”. Application Many answers on this site apply this standard. E.g. Copyright of retyped public domain text List of answers referring to a &quot;modicum of creativity&quot; You can also browse published decisions applying this standard (a Google search of casetext.com). 1. Although, I recognize for several of these categories there are additional or alternative rationales, and even statutory bars (e.g. 102(b)), for not granting copyright protection.
There is a good chance that the letter in question is in the public domain. Prior to 1978, the copyright laws were very different. Also, if it was published in 1963 or earlier and there was an initial claim of copyright but the copyright was not renewed, it would also be in the public domain. A convenient table summarizing when various pertinent categories of works enter the public domain can be found here. It might be possible to construe depositing the work with the Library of Congress as either a "publication" of the work (which if it happened before 1964 would put it in the public domain), or as a relinquishment of the copyright to the public domain, although I am not a specialist familiar with the legal effect of different forms of donations to the Library of Congress and it could depend upon the facts and circumstances of that particular donation to the Library of Congress. If worse came to worse, I imagine it might be possible to seek a declaratory judgment that your use was a fair use with substituted service on the heirs, and seek a default judgment, although that would not be optimal. The general problem that you face is that the work in question is what is called an "orphan work". Many other countries have special procedures to allow the use of orphan works, but the U.S. has resisted such legislation except for a narrow exception applicable only to libraries and archives at 17 U.S.C. § 108.
You are confusing two separate concepts: trademark and copyright. I'll give you a broad overview of both of these, although the details will differ depending on what country's law we're talking about. A copyright is held by the creator of a work of artistic expression. It gives the creator certain exclusive rights, including the right to create copies of the work and to prepare derivative works. For example: The movie "Star Wars" is a work of artistic expression. You cannot copy "Star Wars," or any significant part of it--including the script, the music, etc.--without the permission of the copyright owner, unless your use fits into one of the exceptions to copyright in your jurisdiction. Likewise, you cannot write your own book featuring the Star Wars characters: that would be a derivative work, a work based on the original work, and would violate the rights of the copyright holder. Without having read the book in question, I'm not going to comment on whether it does or doesn't infringe the film's copyright. But ideas can't be copyrighted. A film review, for instance, isn't a copyright violation--and a longer work discussing the ideas involved in a film isn't necessarily a copyright violation, either. Copyright only protects the expression itself--the language, the images. You are very limited in how much of that you can copy, but as long as you're using your own words, copyright protection is less of a concern. Trademarks, on the other hand, are intended to protect a business from customer confusion. Trademarks are not protected in the same way as copyrights; the key analysis of a trademark infringement lawsuit is: does it create confusion about the origin of the goods? For example: if you slap a swoosh on a shoe, Nike will sue you. If you use a swoosh in a political cartoon criticizing Nike, they won't, because nobody is going to think Nike wrote the political cartoon. So: If you write a book and call it: "Ewoks Gone Wild: A Star Wars Story," Disney will sue you, because it would be reasonable for someone who saw that book in a store to think that Disney authorized that book. If you wrote a book called "Forcing the Issue: The Hermeneutics of Science Fiction Movies from Star Wars to Inception", the case would be less clear-cut. But the important thing to understand is that these issues are complicated. There are exceptions to these rules; there are applications that may not be obvious to the non-lawyer ("initial interest confusion" is one minefield in U.S. trademark law), there are national and EU-specific considerations, there are safe harbors, and there are practical considerations, like whether you can afford to fight a lawsuit even if you're in the right. Therefore, I'm not going to tell you whether your hypothetical work would infringe anyone's copyright or trademark, and I'm not going to give you a set of rules on how to avoid it. The only person you should be listening to that sort of advice from is a real, non-anonymous-internet lawyer, licensed to practice in your jurisdiction, who is familiar with the specific details of your specific situation.
"Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem.