In 1991, the U.S. Supreme Court decided that the standard of creativity for copyright protection required a minimal level of creativity. Over the last year, numerous decisions explored how low that level of creativity can go. The First Circuit Court of Appeals held that a chicken sandwich and its recipe are not copyrightable (Norberto-Colon Lorenzana et al. v. South American Restaurants, Corp.). The Ninth Circuit Court of Appeals held that series of yoga poses is not copyrightable (Yoga College of India LP et al. v. Evolution Yoga LLC et al.). However, the Ninth Circuit Court of Appeals held that the Batmobile is copyrightable because it is considered a “character” (DC Comics v. Towle).
WHY YOU SHOULD KNOW THIS. Copyright protects works of authorship. Protection begins once the works are fixed in a tangible means of expression. Even though it’s not necessary, registration of the works is always advisable. Registration establishes a presumption of authorship and gives the author access to the Federal Courts and a host of remedies in the case of infringement. Many businesses have works that might be, at least partially, copyrightable. For instance, a menu in a restaurant could be copyrightable if it had more than just a list of items and their prices, such as graphics, pictures, designs and narratives. Blogs or the white papers that appear on a website are also copyrightable. And so much more depending on the level of creativity involved. Every business should consider the copyrightability of important facets of their business and then properly protect it.