Criminal Appeals

U.S. Copyright Law (Michigan & Nationwide & International)

Today much of the law relating to copyright is contained within the Copyright Act of 1976 (the “1976 Act” enacted October 19, 1976 as Pub. L. No. 94-553, 90 Stat. 2541), which took effect on January 1, 1978, thereby replacing a lot of the provisions under the previous Copyright Act of 1909 (the “1909 Act”). The subject-matter that is eligible for copyright protection is contained in § 102(a) and § 102(b) of the 1976 Act. § 102(a) states the following “(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.”

You should also note that § 102(b) states that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As you have read, copyright protection is granted in ‘original works of authorship fixed in any tangible medium of expression.’ So from this we learn that expression is the driving force of copyright law and that it must be an original work of authorship that is fixed.

A work is fixed in a tangible medium of expression when it is embodied in a copy or phonorecord (§ 101 of the 1976 Act) and a work is created when it is fixed in a copy or phonorecord for the first time (§ 101 of the 1976 Act).  In order to obtain U.S. copyright protection then, you being the author, your work should be original and fixed in any tangible expression, in other words the Act requires that your work is original and not copied with a minimal degree of creativity in some permanent form and as stated the primary protection under U.S. copyright law lies in the protected expression of your work.

Importantly, the Act does not protect an idea, procedure or process, this may have an effect on the proposed process or perhaps the formula of the invention, but processes are protectable subject matter under the Patent Act § 101, which will be discussed below and such decisions are determined by the United States Patent and Trademark Office (“USPTO”). However, copyright law does not protect recipes that are mere listings of ingredients.

Nor does copyright protect other mere listings of ingredients, such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression–a description, explanation or illustration, for example–that accompanies a recipe or formula or to a combination of recipes, as in a cookbook. In sum, copyright protection may be available to the written expression of the formula or processes, but not just mere listings.

Hackett & Hackett PC provides legal advice and assistance on various copyright issues both nationally and internationally.

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In association with Merit Legal Solicitors
(UK & Europe)