Know Your (Copy)rights: Creative Writing in the Digital Age - Fordham Intellectual Property, Media & Entertainment Law Journal
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Know Your (Copy)rights: Creative Writing in the Digital Age

Know Your (Copy)rights: Creative Writing in the Digital Age

As someone who is interested in creative writing, I follow the blogs of writers who post online to share and catalog their work. Though I love the easy access to these writers’ works both new and old, I have often wondered what my rights would be to any creative work I post online. The Internet helps writers reach seemingly boundless audiences, but how does this excessive distribution of creative work impact an author’s rights to that work?

In the United States, copyright law is practical. Federal copyright law gives copyright holders certain rights to intervene in the reproduction, distribution, production of derivative works, and public performance or display of the copyrighted material in order to incentivize production of creative works.1 And yet, while the rise of the Internet has made it easier than ever to connect people all over the world, the “ease of reproducing many works in the digital age make[s] copyright law a particularly challenging and important area of intellectual property today.”2

It is important for an author to recognize that while copyright protection can be broad, the scope of protection for a specific work depends on a few factors. Generally, a copyright exists for “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.”3 That is, a copyright protects any work that is original and fixed, even without the author registering the copyright or distributing the work.4 Still, it is a good idea for authors to register works with the Copyright Office, should they ever need to take action to enforce their copyrights.5

A work is considered “fixed” if it is recorded in such a way that it can be communicated to someone in a stable, permanent manner (e.g., written down or audio taped).6 Significantly, the fixation provision of the Copyright Act looks to the future and leaves open the possibility of a copyright for works communicated via technology that does not yet exist. Though fixation can be challenging to determine in our digital world, it is generally straightforward.7 Originality is not as easily ascertainable as fixation, and is largely determined by Supreme Court precedent.8 The Court has noted that “original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses some minimal degree of creativity.”9 Notably, an original work need not be novel, for the “vast majority of works make the [originality] grade quite easily, as they possess some creative spark, no matter how crude, humble, or obvious it might be.”10

The Copyright Act provides a list of types of works that are generally copyrightable, including literary, musical, and dramatic works.11 In contrast, authors should be aware of the types of works that are not eligible for copyright, such as facts, ideas,12 and works of the federal government.13 For instance, it would be difficult for an author to copyright the plotline of “boy meets girl,” though they might receive protection for the details that distinguish her story from the archetypal romance. In this vein, authors should take care to understand how detailed and original their work should be before it is entitled to protection, noting that “copyright rewards originality, not effort,”14 and that “effort…does not equal originality.”15 Furthermore, authors will do well to remember that their work may be subject to fair use.

In sum, authors should not be afraid of publishing their work online and expanding their audiences, as work that is original and fixed, even if it is not distributed in any way, is entitled to copyright protection.16 However, authors should be careful to check the terms of service of the digital platforms to which they post their work to ensure an understanding of their own rights in relation to those of the platforms. Authors also should be cognizant about the state in which they post their works—a finished original work may be protected, but rough ideas or outlines may not be. Ultimately, an author who wants to be sure of her rights may wish to register her copyright before sharing her work with her fans.

  1. Lydia Pallas Loren & Joseph Scott Miller, Intellectual Property Law: Cases & Materials 321 (5th ed. Semaphore Press 2017).

  2. Id.

  3. Copyright Act of 1976, 17 U.S.C. § 102 (2012).

  4. Loren, supra note 1, at 364.

  5. Stopping Copyright Infringement, U.S. Copyright Off. (Mar. 10, 2010), [].

  6. Loren, supra note 1, at 324.

  7. Id. at 323-24.

  8. Id. at 325.

  9. Feist Publ’ns, Inc. v. Rural Tel. Service Co., Inc., 499 U.S. 340, 345 (1991).

  10. Id.

  11. Loren, supra note 1, at 327 (citing 17 U.S.C. §102(a)).

  12. Feist, 499 U.S. at 344.

  13. Loren, supra note 1, at 339.

  14. Feist, 499 U.S. at 363.

  15. Loren, supra note 1, at 339.

  16. Loren, supra note 1, at 364.

Allison Sweeney

Allison Sweeney is a second-year J.D. candidate at Fordham University School of Law, and a staff member of the Fordham Intellectual Property, Media, & Entertainment Law Journal.