The U.S. Copyright Office will only register a work of authorship if that work is “eligible” for copyright protection. The “human” element to copyright is essentially one element for copyright eligibility. In short, the element requires that a work of authorship be created by a human being before it can be copyrighted. The Copyright Office will refuse to register a claim if it determines that a human being didn’t create the work.
The Human Side to Copyright
Copyright law protects original works of authorship that are fixed in some tangible medium of expression, such as:
- Movies, or
The human element to copyright law basically asserts that a work of authorship must have been created by an actual human before it can receive copyright protection.
While copyright law protects the expression of ideas, it does not protect the underlying ideas or facts themselves. The human element distinguishes one person’s expression of an idea from another’s, acknowledging that multiple individuals may have the same idea but express it differently. For example, two writers may have the same idea for a novel, but each author’s unique writing style, character development, and plot choices contribute to the distinct expression of their respective works.
The Reason for the Human Element
The human element is essential in copyright law because it encourages creativity, innovation, and individual contributions to society’s cultural and intellectual heritage. It ensures that creators have the exclusive right to control and benefit from their original works and provides an incentive for individuals to invest their time, effort, and talent in creating new and original content.
Works That Lack Human Authorship
According to the U.S. Copyright Office, works created by nature, animals, or plants aren’t copyrightable because they’re not created by humans. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, but the Office may register a work where the applicant states that it was inspired by a divine spirit.
The following are specific examples of works that are not copyrightable because of the human element requirement:
- A photograph taken by a monkey,
- A medium of expression based on driftwood that has been shaped and smoothed by the ocean,
- An application for a song naming the Holy Spirit as the author of the work.
But please keep in mind that the human element doesn’t imply that copyright protection only applies to works created by humans. Works that are created by artificial intelligence or computer programs may receive copyright protection. The crucial question is:
- Whether the work is basically one of human authorship with the computer [or other device] merely being an assisting instrument, or
- Whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.
Examples of works that are still copyrightable include:
- Reducing or enlarging the size of a preexisting work of authorship,
- Making changes to a preexisting work of authorship that are dictated by manufacturing or materials requirements, and
- Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD.
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