The essential requirements for copyrightability are: 1) original creation, 2) appropriate subject matter, and 3) “fixation” in a tangible medium.  To be copyrightable, all three of these requirements must be fulfilled.  A work that fails one of these points is not copyrightable and is therefore unprotected by copyright laws.

Visual Art is copyrightable–so long as it meets all 3 requirements above.


Original + Creation

Original creation is independent creation plus a modicum (small amount) of creativity. Original creation refers to how the work came about to be.  In short, to be copyrightable, it must be original and it must be actually created by the author (artist).  This lends itself to a series of questions: 

What is Originality?

Throughout the history of art, artists have copied and taken "inspiration” from other artworks, both historical and contemporary. The entire history of art consists of images in time with increasingly sophisticated representations and methods overlaying those of the past.  Every artist relies on those that came before, to one extent or another.  Therefore, particularly in visual art, the location of the line between originality and unoriginal duplication can be hazy.  Regardless, originality in regards to copyright means that the author (artist) actually created the work–it originates with the artist, and the work is unique in some way. That is, it was not copied from another work, it is not public domain material, etc.)  

How original is original?

The courts have defined the amount of  originality as being satisfied with a “modicum” of originality.  This is the smallest bit of creativity; a decision made that can be attributed to an aesthetic or other choice.  The court does not decide whether the original contribution is good or not, rather only whether originality exists in the work.  In a work that combines both originality and non-originality, the original aspect is protected; the non-original is not. 

What is Creation?

The artist/author must actually create the work.  Objects which are not actually created by the author/artist cannot be copyrighted.  Things that are considered not created include:  things found in nature, facts, works for which the copyright has expired and is now in the public domain, something pre-existing, and objects created by another individual.  This is a difficult issue when, for example, an artwork contains found (manufactured) objects.  Are the found objects copyrightable by the artist?  Probably not, but the artist might perhaps be able to copyright the (original) arrangement of the objects within the artwork.

The Artist/Author and the Creative Act

The creation must be that of the artist/author.  What this means is that the artist must have made some input into the creation of the object.  At one time there was a question of whether a photograph was copyrightable because a machine -the camera- was the actual maker of the image on the plate (or film).  However, it was recognized that the photographer makes certain choices, such as placement of the subject, how the image was framed in the lens, lighting, etc., and the understanding that creative action was involved in the making of the photograph.  The camera is a tool for the artist, much as a paint brush or chisel.  Photographs are now recognized as copyrightable subject matter. 


Subject Matter

Subject Matter refers to the types of things that can be copyrighted.  Which subject matter is copyrightable is stated in the copyright law.  In short, this includes virtually any type of visual art, so long as it complies with the other requirements above (original creation and fixation).

The copyright statute (law) states the types of works that are copyrightable subject matter;² The types of works and some examples are provided here by artuntitled.com:

(1) Literary works, such as writings, books, poetry, essays, research papers, and also
includes original writings such as computer programming code;

(2) Musical works and accompanying words, such as instrumental compositions and lyrics;

(3) Dramatic works and accompanying music, such as plays, screenplays and the associated score;

(4) Pantomimes and choreographic works, such as a dance performance (steps, positions)
and certain forms of performance art; 

(5) Pictorial, graphic, and sculptural works, includes virtually any type of (fixed) visual art,
such as paintings, photographs, illustrations, graphic (design) images, sculpture…

(6) Motion pictures and other audiovisual works, such as film and video works;

(7) Sound recordings, this is the recording of musical works, or perhaps the recordings of
other types of sounds, such as sound effects, a voice recording, and other types of recordings.

(8) Architectural works (as plans or drawings of a building).

You may notice that these categories are fairly generalized and that some objects may fit into multiple categories, or different aspects of a work may fit into different categories.  For example, a written plan of dance steps would fit into the 4^th category; a drawing of a dancer in one of the positions would fit into category 5; and a video tape of the actual performance would be covered by category 6.  The categories are somewhat flexible, and so long as a good case can be made for a work belonging to one of these subject matters, it is probably copyrightable.  For example, category 1 is literary works.  It’s clear that this encompasses such writings as novels, poetry, etc., but original computer programming code is also included.  It should also be noted that the categories do have limitations, for example category 2 includes musical compositions, but it does not include the recording of that music.  Fortunately the actual recording is included in category 7.  A similar dynamic can be observed between category 3 and category 6.

 

Fixation

Fixation refers to the physicality of the object.  The law states that to be copyrightable, the work must be “fixed in any tangible medium…”  What this means, in essence, is that the work must be physical, and it must be something that can be perceived in some way, by touch, sight, by hearing, etc. 

There are practical reasons for this requirement.  If the object was not perceivable, but ephemeral like a puff of smoke that passes by and then dissapates, it would be impossible to enforce protection against copying it.  To be copyrightable, the work must be contained in some sort of medium, so a videotape recording of the puff of smoke would be copyrightable.  (Perhaps as a category 6 work, above)  Similarly, a choreographed dance is not copyright protected unless is fixed in some way, such as by a diagram or written description.

Non-Copyrightable Works
Along with the 3 requirements discussed above, certain categories and forms of works are not copyrightable.  The following non-exhaustive list represents non-copyrightable works:

Works that are not in a tangible form, such as choreography, improvisational works that have not been recorded or notated, or written down. (Because they are not fixed in a medium).

Titles (of works), names, short phrases (especially common ones), lists of ingredients or contents, commonly known/familiar symbols. (Because they are not original, or because the restriction of them would impede the freedom of speech of others, or the abillity to describe common things).

Ideas, concepts and methods, procedures and processes, discoveries and devices. (Because they are not included in the subject matter types listed in the Copyright statute).

It should be noted that some of the objects and subject matters above may be protectable in other forms, such as trademark or patent.

Reference: The Copyright Subject Matter statute. (Emphasis added).