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Copyright Protection Extends to Expressive Material

Co-author Gerald M. Levine

Copyright protection extends to expressive material. Strings of effectively arranged letters, words, phrases, clauses, sentences and paragraphs are the essence of expression. They are owned by the author who creates them and protected by copyright law, although infringements are not actionable unless the work is registered with the Copyright Office. If an author includes in his work expressive material owned by others (compilations or derivative works) he or she must carve out in the copyright application what is not to be included in the certificate. This requirement applies whether or not the author has been granted permission to use the expressive material.  Section 103 of the Copyright Act provides as follows       

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

The copyright application asks the applicant to state under oath the specific content both included and excluded for registration. The Copyright Office defines material to be excluded as “preexisting material”, as follows:

Material is preexisting if it has been previously registered, previously published, is in the public domain, or is not owned by this claimant. (Emphasis added).

The Application lists four categories for exclusion, “Text,” “Artwork,” Photographs,” and “Computer Program.” There is also a blank field for “Other” which can be used to more specifically particularize what is being either excluded and included for copyright registration.

In speaking about expressive material, it is not only that which is written, or if written only published, but includes verbal expression as memorialized for example in an interview. The expressive material in unpublished letters as another example is owned by the writer of the letters not the recipient who owns only the paper on which the content is written. None of this material can be copied unless it meets the criteria for fair use. Control over the reproduction of a work and derivatives, dramatic performances and other exclusive rights is reserved to the author.

Rights to unpublished material was the principal issue in a Salinger lawsuit concerning the use of the most interesting quotations from letters in an unauthorized biography of the author. “Salinger” held the Court, “has a right to protect the expressive content of his unpublished writings for the term of his copy-right, and that right prevails over a claim of fair use under ‘ordinary circumstances’,” Salinger V. Random House, Inc., 811 F.2d 90 (2nd Cir. 1987).  Ideas, however, are not copyrightable (to be discussed in a later Note).

For protecting expressive material, what applies to longer works is equally true of shorter published or accepted for publication on the Internet. Internet anthologists and aggregators who publish material have the right to register their aggregations as compilations, but depending on the terms of license (exclusive or non exclusive) have no control over an author’s future use of his or her work. Separately, authors may register their own journalistic and opinion pieces and exploit them as they will.  Whether to register, however, may depend on the occasion for the publication, whether independent or part of an aggregation and the value of the expressive material.

Ephemeral and generic musings pass in a blink.  More thoughtful notes and essays standing independently are more likely candidates for registration. There is a line of cases that hold that expressive material may even extend to short phrases if the “sequence of thoughts, choice of words, emphasis, and arrangement … satisf[ies] the minimal threshold of required creativity.” The “minimal threshold of required creativity”, however, is a high bar.  Flash fiction or flash any other genre may qualify and should be registered. Copyright registration is relatively inexpensive and can be completed online for $35.

If the purpose for writing is to provide serious material to an Internet audience and the author is not the publisher, publishing is not without bumps. In a recent contract involving contributions to a website “journal” a website publisher agreed to accept articles on a non-exclusive basis (which is fine), but its contract provided that “[i]f you choose to republish your articles, you MUST publish them either with a NoIndex HTML tag or as an image file” (which is not so fine because although it appears not to restrict it limits the author’s ability to reach audiences other than the publisher’s). So, in clicking “accept” at least pay attention to the terms and who will own the published piece.

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