Thinking about IP – Starting with the Basics

The term “intellectual property” can cover a lot of ground, but for this blog dedicated to issues faced by content creators, the most common IP issues are those involving copyright and trademark. We’ll address trademarks in the future, but for now we are going to focus on copyright. The concept of copyright is so fundamental that it’s included in Article 1, Section 8 of the U.S. Constitution, and is more fully fleshed out in Title 17 of the U.S. Code.

To start out, it’s important to understand that a copyright is really a bundle of six exclusive rights held by the owner(s):

  • the right to reproduce the work;
  • the right to prepare “derivative works” based on the work;
  • the right to distribute copies;
  • the right to perform the work publicly;
  • the right to display the work publicly; and
  • the right to publicly perform sound recording by digital audio transmission.

For our purposes here, the most applicable rights are to copy, prepare derivative works, distribute copies, and display the work. There is a lot of flexibility in how these rights can be held. Sometimes all of these rights are held together by one or more owners, other times the rights are divvied up between different owners. These rights can also be licensed, and one or more license holders (i.e. a “licensee”) can have an exclusive or non-exclusive right.

It’s also important to distinguish what a copyright can and cannot protect. Copyright protects “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.” There is a lot packed into that sentence. The breakdown is basically that the work must be “original” – it can’t be a copy of another work – and it has to be “fixed” – which means that it is something that can be seen, heard, read, etc. and is sufficiently permanent or recorded. It cannot be an idea or concept floating around in your head or something said in a conversation that then disappears into the ether. The copyright statute specifically provides that an “idea, procedure, process, system, method of operation, concept, principle, or discovery” cannot be protected by copyright. So, a story outline that has been written down or the artwork for a new comic, for example, is copyrightable; the idea for a new story isn’t. Even if you are past the idea stage and you have a fully developed original story with dialogue that you recite from memory Homer-style to an audience, if it’s not “fixed in any tangible medium of expression” it isn’t subject to copyright.

Finally, the owner of the copyright is often – but not always — the author or creator of the work. This may seem obvious, but ownership issues can get complicated if the work is “made for hire” or if the work is authored jointly by two or more people. As we noted earlier, different rights in the copyright bundle can also be held by different owners or used by different licensees.

Predictably, there are a lot more details and nuances surrounding copyright, and we will explore many of them in future posts, but it’s important to always keep these top-level concepts in mind. We hope you visit our blog again soon, and if you have questions or comments, feel free to drop us an e-mail at