Creative and artsy works are often considered the domain of copyright. But copyright is equally important in the commercial world. Copyright provides protection to its owner whenever an original work of authorship is fixed in a tangible medium of expression, e.g., written on paper or saved to disk. Whenever an author pens a novel, a sculptor ‘releases’ his David, or a commercial photographer saves his digital image to disk, that original creation has been fixed in a tangible medium expression and copyright attaches.

The copyright statute itself enumerates the following works subject to copyright:

1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works, including architectural plans
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

But how much originality is needed? The Supreme Court interpreted the Copyright Statute to mean that even a “modicum” of creativity will suffice. More illuminating is what is insufficient.

Titles and short phrases lack originality. “It’s the real thing,” and “You got the right one, uh huh,” may have come from those very creative soft drink folks but even catchy phrases do not rise to the level of originality required. On the other hand, sparse Hai Ku poems clearly achieve the threshold.

Copyright covers the expression of an idea but not the idea behind the expression. This distinction is often a difficult distinction to grasp. Indeed, it seems counter-intuitive that one could conceive of an idea for the great American novel and another could take the idea and write the book with impunity. It was, however, the author that fleshed out the plot and subplots, developed the characters and their relationships, textually painted the scenes and events. It was the author that fixed the creation as required by copyright, not the idea man. Thus it is the author that owns the copyright.

What if someone independently creates a work, subject to copyright, that happens to be nearly exactly like your work? If that person created HIS work independently of yours and thus did not COPY your work, he would own a copyright is his work. Copyright does not require the patent standard of uniqueness. It just requires that the work was original to you - that you didn't copy or base your work on someone else's work. It is possible for there to be identicial works with each author owning a copyright in his or her respective work.

But what does the copyright owner own? Copyright provides its owner with a small bundle of exclusive rights. The owner can reproduce the work, he can make derivative works based upon the work and he can distribute, perform and display the work.

So if you have copyright when a subject work is fixed in a tangible medium of expression, does one really have to fill out a registration form and send it to the copyright office? Not to get copyright, but, registration does provide significant benefits for the minimal registration fee (now $20.00). First the owner gets the keys to the courthouse. A copyright owner may not file a copyright infringement action without first having registered.

Secondly, the registration provides prima facie evidence to the court that the work IS entitled to copyright protection and that all statements are true. While rebuttable, this presumption is of value. Finally, the registration also provides additional remedies which may include the right to statutory damages and in some circumstances the opportunity to shift the burden of attorneys fees to the wrong doer. Statutory damages is available only to those who register their copyright prior to infringement or within 3 months of first publication whichever occurs first.