Suppose that you have expressed your work into a tangible form such as a short expression of words and artistic designs. Although your copyright exists upon the moment of creation, does the work contain a sufficient amount of authorship on which to base a claim for a copyright registration? Should you register the copyright on the work with the U.S. Copyright Office? The answer is YES!
In the United States, under 17 U.S.C. § 102(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.”
The Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) held that originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist. See Patterson & Joyce 760, n. 144 (“While this requirement is sometimes characterized as modest, or a low threshold, it is not without effect”) (internal quotations omitted; citations omitted). As this Court has explained, the Constitution mandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S., at 94; and an author who claims infringement must prove “the existence of . . . intellectual production, of thought, and conception.” Burrow-Giles, supra, at 59-60.
In evaluating a work for copyright protection under Feist, the focus of inquiry is not on the individual elements of the work, but on the combination of those elements in the work as a whole. Indeed, the arrangement of the elements, in and of itself, may be indicative of original authorship. Atari Games Corp. v. Oman, 979 F.2d 242, 243 n. I (D.C. Cir. 1992) (“Atari II’) (“Recalling the creativity of the work of Mondrian and Malevich, for example, we note that arrangement itself may be indicative of authorship.”).
Lest “every song [be] merely a collection of basic notes, every painting a derivative work of color and stroke, and every novel merely an unprotected jumble of words,” a court cannot assess the originality of a work solely from the originality of the individual component parts. As Feist makes clear, a work that is entirely a collection of unoriginal material nevertheless may be copyrighted if the material is selected, coordinated or arranged in an original fashion. While component parts are not entitled to copyright protection simply by virtue of their combination into a larger whole, copyright may protect the particular way in which the underlying elements are combined-if the particular method of combination is itself original.” Diamond Direct, LLC v. Star Diamond Group, Inc., 116 F. Supp. 2d 525, 528 (S.D.N.Y. 2000) (citations omitted) (emphasis added); see also Savata, 323 F.3d at 811 (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”).
Let’s assume that your work is not claiming any utilitarian aspects or function and the work is not an idea or process. Let’s also assume that your work contains a sufficient amount of material and is not merely words and short phrases. In this example, your work contains two-dimensional artistic designs and the arrangement of words with the designs. Since the standard of originality is low, your work shows at least some minimal creativity and sufficient amount of material arranged in a particular format. The work also contains the existence of intellectual production, thought, and conception and should be capable of copyright protection. The work, although short, as a whole is creative and artistically original to be copyrightable because it expresses original selection and creative coordination and arrangement of words and artistic designs. Therefore, the work should be considered as having some minimal degree of creativity and meeting the low standard of originality. Thus, the work should be eligible for copyright registration under the Copyright Act Section 102, 17 U.S.C. § 102(a).
Based on the above scenario, you should register your copyright in the short expression of words and artistic designs immediately. You will then be able to sue your competitor for copyright infringement if your work is copied. Your competitor may argue that you do not have a valid copyright because the work does not contain a sufficient amount of authorship on which to base a claim for a copyright. However, if your words and artistic designs can be perceived as containing a sufficient amount of authorship, you should have a valid copyright and prevail in your copyright infringement suit. Therefore, it is recommended that you register the short expression of your work with the U.S. Copyright Office.