Core Copyright Concept: Fixation

Fixation is a basic requirement one has to meet in order to obtain copyright protection.  What does that mean?  "Fixed in a tangible medium of expression" - something perceivable by humans or machines.   For quilting, that's easy to meet.  We are fixing everything with stitching!  We are working in the medium of fabric, thread, etc.  When fixation becomes an issues is in things like ice sculpture (melts), sand castles (waves), and tattoos.  Interestingly, tattoos are now considered fixed for the purposes of copyright.  [check and add more]

 

The fixation requirement is defined in 17 U.S.C. §102(a), which applies copyright protection to “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.” Section 101 states, “A work is ‘fixed’ in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

The fixation issue also comes into play for copyright infringement. Because copyright owners possess the exclusive right to reproduce their works, if someone else makes an unauthorized copy of a work, he or she is liable for copyright infringement. The unauthorized copy must be fixed in a material object such that it can perceived, reproduced, or communicated for more than a transitory period. If the defendant has not reproduced the copyrighted work in a fixed form, then there is no infringement. 

Key Cases
Stern Electronics, Inc. v. Kaufman
MAI Systems Corp. v. Peak Computer, Inc
Kelley v. Chicago Park District
Kim Seng Co. v. J&A Importers
Garcia v. Google, Inc