In the United States, what is the threshold for &quot;originality&quot; in order to have copyright protection? In the United States, what is the threshold for &quot;originality&quot; in order to have copyright protection? 17 U.S.C. § 102 says that copyright protection subsists &quot;in original works of authorship...&quot;. How original does the work need to be?
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.
17 USC §102: Copyright protection subsists, in accordance with this title, in original works of authorship 17 USC §201: Copyright in a work protected under this title vests initially in the author or authors of the work. Animals cannot be authors. To the extent that the cat's owner could be an author, copyright only subsists in "original works of authorship". The test for originality in the US was laid out in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991): The constitutional requirement necessitates independent creation plus a modicum of creativity. The music produced by the cat was not a product of even a modicum of creativity on the part of the cat's owner (or anyone, for that matter). No copyright subsists in the notes randomly chosen by the cat.
Such a document is protected by copyright the moment it is fixed in a tangible form (which includes on paper and in a computer file). Your creative expression would be protected. But the facts of what the format consists of would not be protected -- copyright never protects facts. You may lawfully place a copyright notice on it, but such a notice will not grant you any rights to control use of the facts disclosed in the document, and would not even if you held copyright to the game or the format. Indeed in the modem era, a copyright notice has very little legal effect at any time on any document created after 1989. If the document is devoted entirely to describing the contents of the file format, there may be very little that is protected beyond the exact wording. If there is essentially only one way or a very few ways to accurately describe the facts, even the exact wording may not be protected. By the way, if you are going to use a copyright notice, the standard notice lists the year as well as the copyright holder (who is often but not always the author). Example: Copyright 2022 Chris Smith Legal Effect of a Copyright Notice In US law, 17 USC 401(a) provides that: (a) General Provisions.—Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. [emphasis added] Subsection (b) which I will not quote, specifies the form of the notice. Subsection (c) specifies how such a notice should be positioned. And subsection (d) goes to the legal effect of the notice. Subsection (d) reads: (d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(2). Since the 1989 effective date of the Berne Convention Implementation Act of 1988 (BCIA), the provisions of 17 USC 401(d) quoted above, are the only legal effect, in US law, of the omission of a copyright notice on a work protected by copyright. (The BCIA amended US copyright law.) Prior to that date, the omission of such a notice could cause total loss of copyright, although there were limited exceptions specified in 17 USC 405 and 406. Section 406 also indicates the legal effect of an incorrect notice on the copyright of the name and date specified in a notice on works published before the date of the BCIA. On works first published since that date, all such legal effects have ceased to operate. In countries other than the US, that have adhered to the Berne Copyright Convention, or the WTO TRIPS agreement, no notice or other formality is required to ensure copyright protection. This includes almost every country in the world, and includes all countries with a significant publishing industry.
US Laws are Free of Copyright Federal Works 17 USC 105 says: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. The phrase "work of the United States Government" has been interpreted to mean any work created by an officer or employee of the government in the course of his or her official duties. See 17 USC 101 for the official definition. This includes the text of (any and all) legislation. The official texts of all US laws (and federal regulations) are in the public domain, and no one may claim copyright on them. Strictly speaking, this is not a matter of "fair use". Fair use is an exception for limited uses of copyrighted content. The texts of these laws are not protected by copyright at all, and never have been. State Works In addition, while works of the various US states are not automatically in the public domain, the text of state laws, and I believe of the various state and local regulations are also in the public domain. This Wikipedia article says: Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals wrote: The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable. The Wikipedia article linked above quotes State of Georgia v. Harrison Co, 548 F.Supp 110, 114 (N.D. Ga 1982) as saying: The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process. It also quotes a US copyright office publication as saying: As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. However, some states do attempt to claim copyright in electronic versions of their state codes. The 2015 LA Times story "Georgia claims that publishing its state laws for free online is 'terrorism'" reports on a recent infringement suit by the State of Georgia against Carl Malamud, who makes copies of the Georgia Annotated Code available for free online. The state claimed that the annotations are protected by copyright. In State of Georgia vs Public Resource Org, Inc 11th Circuit No. 17-11589, (October 19, 2018) a three-judge panel of the US 11th Circuit Court of Appeals found this claim to be without merit. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA. ... In most states the “official” code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. ... When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work. ... Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use. Non-US Laws UK laws are protected under Crown Copyright, although permissive licenses for reproducing copies are easily available. Many other countries have similar provisions. The US, however, does not generally recognize such copyrights. The position of the US Copyright Office is that: [T]he Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties. Laws Incorporating Copyrighted Works by Reference Laws sometimes include by reference privately developed and copyrighted documents. For example, building codes and other safety codes may be developed by private groups, often national non-profit organizations, and incorporated into state laws by reference. This means that the text of the privately developed code is legally part of the law, and the law cannot be fully understood and complied with without reading the code. But the code is a copyrighted work, and the copyright holder may charge for copies. For example, this official Texas web page says: The Texas statutes, administrative rules, and local ordinances occasionally adopt, incorporate, or refer to technical codes published by independent organizations. These codes describe scientific and safety standards for structures and discuss specifications for fire safety, electrical systems, plumbing fixtures, construction practices, and many other topics. ... Codes are not reprinted within the statutes or the local ordinances themselves. They are "adopted by reference" or "incorporated by reference" and are usually available to review at the city clerk's office and at some public libraries. Please contact your local public library or your local government for assistance accessing codes not available online. Federal Copyrights However, this does not mean that anything "published by the US government" is in the public domain or is free of copyright. The Federal government often hires contractors to prepare various works. These works are protected by copyright. Frequently, the contracts will assign this copyright to the Federal government, which as 17 USC 105 says: ... is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Such works are therefore copyrighted, and the copyright holder is or may be the US Federal Government. They are protected in the same way and to the same degree as works of private authorship. Many works funded by the US Federal Government fall into this category.
Almost all works recorded in some fixed way that are not a couple of hundred years old or created by a government agency are protected by copyright. In the absence of an exception to the general rule, copying a work that is protected by copyright is copyright infringement, which can be a basis for the copyright owner to sue the infringer. This can also be a basis for criminal liability is certain additional elements are proved and a prosecutor proves a case of copyright infringement in a criminal case. But, there are some important exceptions to this general rule of what constitutes legally sanctionable copyright infringement. The most important exceptions to the general rule have the character of affirmative defenses. In order words, if someone sued for copyright infringement and the person sued admits that they copied the copyright protected work, they can use these exceptions to avoid having legal liability. One of the exceptions is the permission from the copyright owner to use the copyright work. This can be either in the form of affirmatively given permission to use the copyrighted work in a particular way (called an &quot;express license&quot; to use the copyrighted work), or in the form of permission to use the copyrighted work that can be inferred from context (called an &quot;implied license&quot; to use the copyrighted work). Another of the main exceptions is &quot;fair use&quot;. If the way a copy of a copyrighted work is used constitutes fair use, the person using the copyrighted work without an express or implied license to do so it not liable for copyright infringement. Of course, while you don't need more than one exception to the general rule to avoid liability for copyright infringement, you can have more than one. For example, you can use copyrighted work in a way that would constitute &quot;fair use&quot; and not give rise to liability for that reason if you were sued, even if you can't be sued anyway because you already have been given permission by the owner of the copyright to use the copyright in the way that you did. It isn't a case of a contradiction. It is a case of a general rule that has exceptions.
No, copyright absolutely does not protect anything "novel" or anything related to algorithms or generally anything functional at all. Copyright only protects your "expressed representation of a creative work". Other people can duplicate your work with a different "expression" and not be infringing on copyright. And if there is nothing creative in your work then it's not even eligible for copyright in the first place. For example, if you figure out how to sort an array with fewer computational steps than what anybody else is doing then that is functional code, not creative code, and anybody can reverse engineer/duplicate your sorting algorithm. However, patents do provide the protection you're looking for. If you want to protect your fancy algorithm then apply for a patent. Patents expire an order of magnitude sooner than copyright, but they are the only means of legally protecting this type of intellectual property. Unlike copyright, patent protection is only available if you apply for it, and it has to be approved by the relevant government department in your country (although you can start using the patented technology before approval has gone through).
In the united-states since the effective date of the 1976 Copyright Act, all copyright notices are optional, and copyright does not depend on any notice at all. The same is true in every country that adheres to the Berne Copyright Conventions, which is almost every country in the world, and includes all countries with significant publishing industries. Even before the 1976 act, when a notice was absolutely required, a hand written notice was just as effective as a printed notice, provided that it was legible. Many painters, for example, included (and still include) hand-written copyright notices near the painter's signature, and these were effective. In the US, one cannot file a copyright suit unless the work involved is first registered. If the work was not registered before the infringement occurred, statutory damages are not available (in the US) unless the work is registered within 3 months of publication. For non-commercial works, statutory damages are often the only way to get any significant damages. The original handwritten work, whether posted to the net or not, is still protected by copyright, with or without a notice. A notice is not a substitute for registration. Neither is a post on social media. Proving who created a copyrighted work is not usually a major issue in a copyright suit, and worrying overmuch about ways to establish this is often a waste of tiem and effort. The issues are more often: Was the work copied; if so who copied it; was it infringement, fair use, or use under a license; did some other exception to copyright apply; what damage was done to the copyright owner; what advantage did an infringer get? A copyright notice does largely eliminate the defense of &quot;innocent infringement&quot; in which an infringer claims not to have known that the works was protected. If proved this can greatly reduce damages under US law. A handwritten notice will have the same effect on that defense as a printed one.
The origin of a lawsuit will not be a license, but copyright law. Licenses are exemptions from copyright law enforcement. The original author holds the copyright. That person did offer a license O to the third party, but that third party did not take up that offer. Hence, there is a copyright violation, and a cause for a lawsuit. It is up to the original author what might be demanded there, but the usual demand is such suits is for damages. However, it is common practice to settle the case amicably outside the courts by agreeing to the original license O, although this may come with undisclosed extra terms. The problem with a lawsuit is that enforcement of the original license offer O is hard, because copyright law generally does not cover such licensing. The license terms L are mostly irrelevant as that person is not a copyright owner so there is nothing to be licensed.