Copyright protects original works of authorship fixed in a tangible medium of expression. That phrase, from 17 U.S.C. § 102(a), is the entire threshold test, and each part of it does real work. Something must be a work of authorship, it must be original, and it must be written down, recorded, saved, or otherwise pinned to something more durable than the moment.
The bar for originality is famously low, but it is not zero, and it is not what most people assume. Originality in copyright has nothing to do with quality, novelty, effort, or artistic merit. It means only that you made the thing yourself rather than copying it, and that you made at least some minimally creative choice while doing so.
The controlling authority is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Rural published a white-pages phone directory. Feist copied thousands of its listings. Rural sued, and lost, because an alphabetical list of names, towns, and phone numbers contains no original authorship at all.
Feist set out two requirements. The work must be independently created by the author, meaning not copied from someone else. And it must possess at least some minimal degree of creativity. The Court was emphatic that the second requirement is easy to clear: the level is “extremely low,” even “a slight amount will suffice,” and “the vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.”
Novelty is not required. If two photographers independently shoot near-identical images of the same landmark, both own copyrights, and neither infringes the other. That is the deepest structural difference between copyright and patent law: copyright polices copying, not priority.
Before Feist, several circuits protected factual compilations under a “sweat of the brow” theory: you invested labor and expense gathering the data, so the law should stop a competitor from free-riding on it. Feist destroyed that idea, calling it a doctrine that “flouted basic copyright principles.”
The reason is that facts are discovered, not created. The first person to determine that a subscriber’s number is 555-0100 has authored nothing; the number existed. Section 102(b) says the same thing more broadly, excluding from protection “any idea, procedure, process, system, method of operation, concept, principle, or discovery,” regardless of how it is described or embodied in the work. That principle traces back to Baker v. Selden, 101 U.S. 99 (1879), where a copyright in a book explaining a bookkeeping system did not reach the system itself.
Compilations are still protectable, but narrowly. Section 101 defines a compilation as a work formed by selecting, coordinating, or arranging preexisting material in a way that as a whole constitutes an original work of authorship. A curated anthology or a ranking with idiosyncratic criteria can qualify. What is protected is only the choices, never the underlying facts. Section 103(b) confirms that copyright in a compilation “extends only to the material contributed by the author,” not to the preexisting material, which is why Feist said “the copyright in a factual compilation is thin.”
Courts do not evaluate merit. That rule comes from Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), a case about circus advertising posters. Justice Holmes wrote that it would be “a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”
The consequence is that a child’s drawing, a commercial jingle, a mediocre snapshot, and a museum painting all sit on the same side of the line. The aesthetic non-discrimination principle also cuts against a common intuition that commercial or utilitarian work is somehow less protectable. It is not. Advertising copy, product photography, and instruction manuals are copyrightable to the extent they contain original expression.
There are real limits, but they come from doctrine rather than taste. Under the merger doctrine, when an idea can be expressed in only one or a very few ways, the expression merges with the idea and is unprotected, so that no one can monopolize the idea by claiming the only words for it. Under scenes a faire, stock elements that flow naturally from a genre or setting are unprotected. And the Copyright Office refuses registration to names, titles, short phrases, and mere listings of ingredients or contents, which are simply too slight to contain authorship.
Originality is not enough on its own. Section 102(a) requires the work be fixed in any tangible medium of expression, and § 101 defines fixation as embodiment in a copy or phonorecord that is “sufficiently permanent or stable” to be perceived, reproduced, or otherwise communicated for more than a transitory duration.
This is why an unrecorded improvisation, an extemporaneous speech, and a choreographed routine never written down or filmed have no federal copyright, however original they are. It is also why the medium is irrelevant: a napkin, a hard drive, a voice memo, and a marble block are all tangible media. Section 102(a) reaches any tangible medium of expression “now known or later developed,” from which the work can be perceived “either directly or with the aid of a machine or device,” language written specifically so that new technology would not require new statutes.
Live broadcasts get a carve-out. A work transmitted live is treated as fixed if a recording is being made simultaneously with the transmission, which is what brings a live sports broadcast inside copyright.
Copyright attaches to works of authorship, and the courts have read “author” to mean a person. In Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), the crested macaque that tripped a wildlife photographer’s shutter could not sue, because the Copyright Act does not confer standing on animals. The Copyright Office had already said the same in its Compendium, refusing registration to works produced by nature, animals, or plants.
Generative AI put real weight on the question. In Thaler v. Perlmutter, the D.C. Circuit affirmed in March 2025 that “the Copyright Act requires all work to be authored in the first instance by a human being,” pointing out that the statute’s references to an author’s lifespan, heirs, and legal capacity make sense only for people. The Supreme Court denied certiorari on March 2, 2026, leaving the human authorship requirement in place.
That does not mean AI-assisted work is unprotectable. The line is what the human contributed. In Zarya of the Dawn, the Copyright Office issued a partial registration in 2023: the comic’s written text and the selection and arrangement of its elements were protected as human authorship, while the individual Midjourney-generated images were not, because prompting was held to leave the specific expressive output to the machine. Registration applications now require disclosure of AI-generated material that is more than de minimis.
Human authorship is a threshold question, not a formality. Everything else, including registration and the enforcement leverage it unlocks, sits downstream of it.
What can be copyrighted? Original works of authorship fixed in a tangible medium of expression, under 17 U.S.C. § 102(a). That includes literary works, music, drama, choreography, pictorial and graphic works, sculpture, film, sound recordings, and architecture. It does not include ideas, procedures, systems, methods, facts, or discoveries, no matter how the work describes or explains them. Section 102(b) makes that exclusion explicit.
How much originality does copyright require? Very little. Feist Publications v. Rural Telephone Service (1991) held that a work must be independently created by the author and possess at least a modicum of creativity. The Supreme Court called the required level extremely low, and said the vast majority of works make the grade quite easily because they possess some creative spark, no matter how crude, humble, or obvious it might be.
Why are facts not copyrightable? Because facts are discovered, not authored. Feist rejected the sweat-of-the-brow theory that hard work alone earns protection, holding that the first person to find a fact has not created anything. A factual compilation can still be protected, but only in the selection, coordination, and arrangement of the facts if those choices are original, and never in the underlying data.
Can AI-generated work be copyrighted? Not the purely machine-generated parts. The D.C. Circuit affirmed in Thaler v. Perlmutter (2025) that the Copyright Act requires a human author in the first instance, and the Supreme Court denied certiorari in March 2026. The Copyright Office has registered AI-assisted works where a human contributed enough expression, as in Zarya of the Dawn, where the text and arrangement were protected but the Midjourney images were not.
Going further: How to Copyright Your Work, step by step .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Seventh Circuit held Chapman Kelley's wildflower garden was neither authored nor fixed, so neither copyright nor VARA could protect it, however original.
The Tenth Circuit held Meshwerks' digital wireframe models of Toyota vehicles were unoriginal copies, not copyrightable works, applying Feist to 3D modeling.
The D.C. Circuit held that the Copyright Act requires a human author, foreclosing registration of a work generated autonomously by an AI system. The Supreme Court has now declined to disturb that conclusion.
How an 1884 Supreme Court case about a portrait of Oscar Wilde established that photographs can be copyrightable original works authored by the photographer's creative choices.
In Georgia v. Public.Resource.Org (2020), a divided Supreme Court held that the annotations in Georgia's official annotated code are uncopyrightable government edicts because they are authored by legislators acting as legislators.
The Supreme Court held that a copyrighted statuette does not lose protection by being mass-produced and incorporated as the base of a utilitarian lamp, laying the groundwork for the useful-articles doctrine.
Justice Holmes held that commercial advertising can be copyrighted and that judges must not sit as arbiters of a work's artistic merit, establishing copyright's low originality threshold.
In Star Athletica v. Varsity Brands (2017), the Supreme Court replaced a tangle of separability tests with a single statutory inquiry, holding that surface decorations on cheerleading uniforms can be copyrighted as pictorial works.
In Feist Publications v. Rural Telephone Service (1991), the Supreme Court held that a garden-variety white-pages directory lacked the 'modicum of creativity' the Constitution requires, burying the 'sweat of the brow' doctrine for good.
