United States Code/Title 17/Chapter 1/Section 102

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Sec. 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(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;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

-SOURCE-

   (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2544;
   Pub. L. 101-650, title VII, Sec. 703, Dec. 1, 1990, 104 Stat.
   5133.)

-MISC1-

                      HISTORICAL AND REVISION NOTES                   

                        HOUSE REPORT NO. 94-1476                     
     Original Works of Authorship. The two fundamental criteria of
   copyright protection - originality and fixation in tangible form
   are restated in the first sentence of this cornerstone provision.
   The phrase "original works or authorship," which is purposely left
   undefined, is intended to incorporate without change the standard
   of originality established by the courts under the present
   copyright statute. This standard does not include requirements of
   novelty, ingenuity, or esthetic merit, and there is no intention to
   enlarge the standard of copyright protection to require them.
     In using the phrase "original works of authorship," rather than
   "all the writings of an author" now in section 4 of the statute
   [section 4 of former title 17], the committee's purpose is to avoid
   exhausting the constitutional power of Congress to legislate in
   this field, and to eliminate the uncertainties arising from the
   latter phrase. Since the present statutory language is
   substantially the same as the empowering language of the
   Constitution [Const. Art. I, Sec. 8, cl. 8], a recurring question
   has been whether the statutory and the constitutional provisions
   are coextensive. If so, the courts would be faced with the
   alternative of holding copyrightable something that Congress
   clearly did not intend to protect, or of holding constitutionally
   incapable of copyright something that Congress might one day want
   to protect. To avoid these equally undesirable results, the courts
   have indicated that "all the writings of an author" under the
   present statute is narrower in scope than the "writings" of
   "authors" referred to in the Constitution. The bill avoids this
   dilemma by using a different phrase - "original works of
   authorship" - in characterizing the general subject matter of
   statutory copyright protection.
     The history of copyright law has been one of gradual expansion in
   the types of works accorded protection, and the subject matter
   affected by this expansion has fallen into two general categories.
   In the first, scientific discoveries and technological developments
   have made possible new forms of creative expression that never
   existed before. In some of these cases the new expressive forms -
   electronic music, filmstrips, and computer programs, for example -
   could be regarded as an extension of copyrightable subject matter
   Congress had already intended to protect, and were thus considered
   copyrightable from the outset without the need of new legislation.
   In other cases, such as photographs, sound recordings, and motion
   pictures, statutory enactment was deemed necessary to give them
   full recognition as copyrightable works.
     Authors are continually finding new ways of expressing
   themselves, but it is impossible to foresee the forms that these
   new expressive methods will take. The bill does not intend either
   to freeze the scope of copyrightable subject matter at the present
   stage of communications technology or to allow unlimited expansion
   into areas completely outside the present congressional intent.
   Section 102 implies neither that that subject matter is unlimited
   nor that new forms of expression within that general area of
   subject matter would necessarily be unprotected.
     The historic expansion of copyright has also applied to forms of
   expression which, although in existence for generations or
   centuries, have only gradually come to be recognized as creative
   and worthy of protection. The first copyright statute in this
   country, enacted in 1790, designated only "maps, charts, and
   books"; major forms of expression such as music, drama, and works
   of art achieved specific statutory recognition only in later
   enactments. Although the coverage of the present statute is very
   broad, and would be broadened further by the explicit recognition
   of all forms of choreography, there are unquestionably other areas
   of existing subject matter that this bill does not propose to
   protect but that future Congresses may want to.
     Fixation in Tangible Form. As a basic condition of copyright
   protection, the bill perpetuates the existing requirement that a
   work be fixed in a "tangible medium of expression," and adds that
   this medium may be one "now known or later developed," and that the
   fixation is sufficient if the work "can be perceived, reproduced,
   or otherwise communicated, either directly or with the aid of a
   machine or device." This broad language is intended to avoid the
   artificial and largely unjustifiable distinctions, derived from
   cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1
   (1908) [28 S.Ct. 319, 52 L.Ed. 655], under which statutory
   copyrightability in certain cases has been made to depend upon the
   form or medium in which the work is fixed. Under the bill it makes
   no difference what the form, manner, or medium of fixation may be -
   whether it is in words, numbers, notes, sounds, pictures, or any
   other graphic or symbolic indicia, whether embodied in a physical
   object in written, printed, photographic, sculptural, punched,
   magnetic, or any other stable form, and whether it is capable of
   perception directly or by means of any machine or device "now known
   or later developed."
     Under the bill, the concept of fixation is important since it not
   only determines whether the provisions of the statute apply to a
   work, but it also represents the dividing line between common law
   and statutory protection. As will be noted in more detail in
   connection with section 301, an unfixed work of authorship, such as
   an improvisation or an unrecorded choreographic work, performance,
   or broadcast, would continue to be subject to protection under
   State common law or statute, but would not be eligible for Federal
   statutory protection under section 102.
     The bill seeks to resolve, through the definition of "fixation"
   in section 101, the status of live broadcasts - sports, news
   coverage, live performances of music, etc. - that are reaching the
   public in unfixed form but that are simultaneously being recorded.
   When a football game is being covered by four television cameras,
   with a director guiding the activities of the four cameramen and
   choosing which of their electronic images are sent out to the
   public and in what order, there is little doubt that what the
   cameramen and the director are doing constitutes "authorship." The
   further question to be considered is whether there has been a
   fixation. If the images and sounds to be broadcast are first
   recorded (on a video tape, film, etc.) and then transmitted, the
   recorded work would be considered a "motion picture" subject to
   statutory protection against unauthorized reproduction or
   retransmission of the broadcast. If the program content is
   transmitted live to the public while being recorded at the same
   time, the case would be treated the same; the copyright owner would
   not be forced to rely on common law rather than statutory rights in
   proceeding against an infringing user of the live broadcast.
     Thus, assuming it is copyrightable - as a "motion picture" or
   "sound recording," for example - the content of a live transmission
   should be regarded as fixed and should be accorded statutory
   protection if it is being recorded simultaneously with its
   transmission. On the other hand, the definition of "fixation" would
   exclude from the concept purely evanescent or transient
   reproductions such as those projected briefly on a screen, shown
   electronically on a television or other cathode ray tube, or
   captured momentarily in the "memory" of a computer.
     Under the first sentence of the definition of "fixed" in section
   101, a work would be considered "fixed in a tangible medium of
   expression" if there has been an authorized embodiment in a copy or
   phonorecord and if that embodiment "is sufficiently permanent or
   stable" to permit the work "to be perceived, reproduced, or
   otherwise communicated for a period of more than transitory
   duration." The second sentence makes clear that, in the case of "a
   work consisting of sounds, images, or both, that are being
   transmitted," the work is regarded as "fixed" if a fixation is
   being made at the same time as the transmission.
     Under this definition "copies" and "phonorecords" together will
   comprise all of the material objects in which copyrightable works
   are capable of being fixed. The definitions of these terms in
   section 101, together with their usage in section 102 and
   throughout the bill, reflect a fundamental distinction between the
   "original work" which is the product of "authorship" and the
   multitude of material objects in which it can be embodied. Thus, in
   the sense of the bill, a "book" is not a work of authorship, but is
   a particular kind of "copy." Instead, the author may write a
   "literary work," which in turn can be embodied in a wide range of
   "copies" and "phonorecords," including books, periodicals, computer
   punch cards, microfilm, tape recordings, and so forth. It is
   possible to have an "original work of authorship" without having a
   "copy" or "phonorecord" embodying it, and it is also possible to
   have a "copy" or "phonorecord" embodying something that does not
   qualify as an "original work of authorship." The two essential
   elements - original work and tangible object - must merge through
   fixation in order to produce subject matter copyrightable under the
   statute.
     Categories of Copyrightable Works. The second sentence of section
   102 lists seven broad categories which the concept of "works of
   authorship" is said to "include". The use of the word "include," as
   defined in section 101, makes clear that the listing is
   "illustrative and not limitative," and that the seven categories do
   not necessarily exhaust the scope of "original works of authorship"
   that the bill is intended to protect. Rather, the list sets out the
   general area of copyrightable subject matter, but with sufficient
   flexibility to free the courts from rigid or outmoded concepts of
   the scope of particular categories. The items are also overlapping
   in the sense that a work falling within one class may encompass
   works coming within some or all of the other categories. In the
   aggregate, the list covers all classes of works now specified in
   section 5 of title 17 [section 5 of former title 17]; in addition,
   it specifically enumerates "pantomimes and choreographic works".
     Of the seven items listed, four are defined in section 101. The
   three undefined categories - "musical works," "dramatic works," and
   "pantomimes and choreographic works" - have fairly settled
   meanings. There is no need, for example, to specify the
   copyrightability of electronic or concrete music in the statute
   since the form of a work would no longer be of any importance, nor
   is it necessary to specify that "choreographic works" do not
   include social dance steps and simple routines.
     The four items defined in section 101 are "literary works,"
   "pictorial, graphic, and sculptural works," "motion pictures and
   audiovisual works", and "sound recordings". In each of these cases,
   definitions are needed not only because the meaning of the term
   itself is unsettled but also because the distinction between "work"
   and "material object" requires clarification. The term "literary
   works" does not connote any criterion of literary merit or
   qualitative value: it includes catalogs, directories, and similar
   factual, reference, or instructional works and compilations of
   data. It also includes computer data bases, and computer programs
   to the extent that they incorporate authorship in the programmer's
   expression of original ideas, as distinguished from the ideas
   themselves.
     Correspondingly, the definition of "pictorial, graphic, and
   sculptural works" carries with it no implied criterion of artistic
   taste, aesthetic value, or intrinsic quality. The term is intended
   to comprise not only "works of art" in the traditional sense but
   also works of graphic art and illustration, art reproductions,
   plans and drawings, photographs and reproductions of them, maps,
   charts, globes, and other cartographic works, works of these kinds
   intended for use in advertising and commerce, and works of "applied
   art." There is no intention whatever to narrow the scope of the
   subject matter now characterized in section 5(k) [section 5(k) of
   former title 17] as "prints or labels used for articles of
   merchandise." However, since this terminology suggests the material
   object in which a work is embodied rather than the work itself, the
   bill does not mention this category separately.
     In accordance with the Supreme Court's decision in Mazer v.
   Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. 630, rehearing
   denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], works of
   "applied art" encompass all original pictorial, graphic, and
   sculptural works that are intended to be or have been embodied in
   useful articles, regardless of factors such as mass production,
   commercial exploitation, and the potential availability of design
   patent protection. The scope of exclusive rights in these works is
   given special treatment in section 113, to be discussed below.
     The Committee has added language to the definition of "pictorial,
   graphic, and sculptural works" in an effort to make clearer the
   distinction between works of applied art protectable under the bill
   and industrial designs not subject to copyright protection. The
   declaration that "pictorial, graphic, and sculptural works" include
   "works of artistic craftsmanship insofar as their form but not
   their mechanical or utilitarian aspects are concerned" is classic
   language; it is drawn from Copyright Office regulations promulgated
   in the 1940's and expressly endorsed by the Supreme Court in the
   Mazer case.
     The second part of the amendment states that "the design of a
   useful article * * * shall be considered a pictorial, graphic, or
   sculptural work only if, and only to the extent that, such design
   incorporates pictorial, graphic, or sculptural features that can be
   identified separately from, and are capable of existing
   independently of, the utilitarian aspects of the article." A
   "useful article" is defined as "an article having an intrinsic
   utilitarian function that is not merely to portray the appearance
   of the article or to convey information." This part of the
   amendment is an adaptation of language added to the Copyright
   Office Regulations in the mid-1950's in an effort to implement the
   Supreme Court's decision in the Mazer case.
     In adopting this amendatory language, the Committee is seeking to
   draw as clear a line as possible between copyrightable works of
   applied art and uncopyrighted works of industrial design. A
   two-dimensional painting, drawing, or graphic work is still capable
   of being identified as such when it is printed on or applied to
   utilitarian articles such as textile fabrics, wallpaper,
   containers, and the like. The same is true when a statue or carving
   is used to embellish an industrial product or, as in the Mazer
   case, is incorporated into a product without losing its ability to
   exist independently as a work of art. On the other hand, although
   the shape of an industrial product may be aesthetically satisfying
   and valuable, the Committee's intention is not to offer it
   copyright protection under the bill. Unless the shape of an
   automobile, airplane, ladies' dress, food processor, television
   set, or any other industrial product contains some element that,
   physically or conceptually, can be identified as separable from the
   utilitarian aspects of that article, the design would not be
   copyrighted under the bill. The test of separability and
   independence from "the utilitarian aspects of the article" does not
   depend upon the nature of the design - that is, even if the
   appearance of an article is determined by aesthetic (as opposed to
   functional) considerations, only elements, if any, which can be
   identified separately from the useful article as such are
   copyrightable. And, even if the three-dimensional design contains
   some such element (for example, a carving on the back of a chair or
   a floral relief design on silver flatware), copyright protection
   would extend only to that element, and would not cover the over-all
   configuration of the utilitarian article as such.
     A special situation is presented by architectural works. An
   architect's plans and drawings would, of course, be protected by
   copyright, but the extent to which that protection would extend to
   the structure depicted would depend on the circumstances. Purely
   nonfunctional or monumental structures would be subject to full
   copyright protection under the bill, and the same would be true of
   artistic sculpture or decorative ornamentation or embellishment
   added to a structure. On the other hand, where the only elements of
   shape in an architectural design are conceptually inseparable from
   the utilitarian aspects of the structure, copyright protection for
   the design would not be available.
     The Committee has considered, but chosen to defer, the
   possibility of protecting the design of typefaces. A "typeface" can
   be defined as a set of letters, numbers, or other symbolic
   characters, whose forms are related by repeating design elements
   consistently applied in a notational system and are intended to be
   embodied in articles whose intrinsic utilitarian function is for
   use in composing text or other cognizable combinations of
   characters. The Committee does not regard the design of typeface,
   as thus defined, to be a copyrightable "pictorial, graphic, or
   sculptural work" within the meaning of this bill and the
   application of the dividing line in section 101.
     Enactment of Public Law 92-140 in 1971 [Pub. L. 92-140, Oct. 15,
   1971, 85 Stat. 391, which amended sections 1, 5, 19, 20, 26, and
   101 of former title 17, and enacted provisions set out as a note
   under section 1 of former title 17] marked the first recognition in
   American copyright law of sound recordings as copyrightable works.
   As defined in section 101, copyrightable "sound recordings" are
   original works of authorship comprising an aggregate of musical,
   spoken, or other sounds that have been fixed in tangible form. The
   copyrightable work comprises the aggregation of sounds and not the
   tangible medium of fixation. Thus, "sound recordings" as
   copyrightable subject matter are distinguished from "phonorecords,"
   the latter being physical objects in which sounds are fixed. They
   are also distinguished from any copyrighted literary, dramatic, or
   musical works that may be reproduced on a "phonorecord."
     As a class of subject matter, sound recordings are clearly within
   the scope of the "writings of an author" capable of protection
   under the Constitution [Const. Art. I, Sec. 8, cl. 8], and the
   extension of limited statutory protection to them was too long
   delayed. Aside from cases in which sounds are fixed by some purely
   mechanical means without originality of any kind, the copyright
   protection that would prevent the reproduction and distribution of
   unauthorized phonorecords of sound recordings is clearly justified.
     The copyrightable elements in a sound recording will usually,
   though not always, involve "authorship" both on the part of the
   performers whose performance is captured and on the part of the
   record producer responsible for setting up the recording session,
   capturing and electronically processing the sounds, and compiling
   and editing them to make the final sound recording. There may,
   however, be cases where the record producer's contribution is so
   minimal that the performance is the only copyrightable element in
   the work, and there may be cases (for example, recordings of
   birdcalls, sounds of racing cars, et cetera) where only the record
   producer's contribution is copyrightable.
     Sound tracks of motion pictures, long a nebulous area in American
   copyright law, are specifically included in the definition of
   "motion pictures," and excluded in the definition of "sound
   recordings." To be a "motion picture," as defined, requires three
   elements: (1) a series of images, (2) the capability of showing the
   images in certain successive order, and (3) an impression of motion
   when the images are thus shown. Coupled with the basic requirements
   of original authorship and fixation in tangible form, this
   definition encompasses a wide range of cinematographic works
   embodied in films, tapes, video disks, and other media. However, it
   would not include: (1) unauthorized fixations of live performances
   or telecasts, (2) live telecasts that are not fixed simultaneously
   with their transmission, or (3) filmstrips and slide sets which,
   although consisting of a series of images intended to be shown in
   succession, are not capable of conveying an impression of motion.
     On the other hand, the bill equates audiovisual materials such as
   filmstrips, slide sets, and sets of transparencies with "motion
   pictures" rather than with "pictorial, graphic, and sculptural
   works." Their sequential showing is closer to a "performance" than
   to a "display," and the definition of "audiovisual works," which
   applies also to "motion pictures," embraces works consisting of a
   series of related images that are by their nature, intended for
   showing by means of projectors or other devices.
     Nature of Copyright. Copyright does not preclude others from
   using the ideas or information revealed by the author's work. It
   pertains to the literary, musical, graphic, or artistic form in
   which the author expressed intellectual concepts. Section 102(b)
   makes clear that copyright protection does not extend to any idea,
   procedure, process, system, method of operation, concept,
   principle, or discovery, regardless of the form in which it is
   described, explained, illustrated, or embodied in such work.
     Some concern has been expressed lest copyright in computer
   programs should extend protection to the methodology or processes
   adopted by the programmer, rather than merely to the "writing"
   expressing his ideas. Section 102(b) is intended, among other
   things, to make clear that the expression adopted by the programmer
   is the copyrightable element in a computer program, and that the
   actual processes or methods embodied in the program are not within
   the scope of the copyright law.
     Section 102(b) in no way enlarges or contracts the scope of
   copyright protection under the present law. Its purpose is to
   restate, in the context of the new single Federal system of
   copyright, that the basic dichotomy between expression and idea
   remains unchanged.

                               AMENDMENTS                            
     1990 - Subsec. (a)(8). Pub. L. 101-650 added par. (8).

                    EFFECTIVE DATE OF 1990 AMENDMENT                 
     Amendment by Pub. L. 101-650 applicable to any architectural work
   created on or after Dec. 1, 1990, and any architectural work, that,
   on Dec. 1, 1990, is unconstructed and embodied in unpublished plans
   or drawings, except that protection for such architectural work
   under this title terminates on Dec. 31, 2002, unless the work is
   constructed by that date, see section 706 of Pub. L. 101-650, set
   out as a note under section 101 of this title.

-SECREF-

                  SECTION REFERRED TO IN OTHER SECTIONS               
     This section is referred to in sections 103, 104, 301 of this
   title; title 19 section 2242.