305 The Fixation Requirement
A work of authorship may be deemed copyrightable, provided that it has been “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid of a machine or device.” 17 U.S.C. § 102(a). Specifically, the work must be fixed in a copy or phonorecord “by or under the authority of the author” and the work must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101 (definition of “fixed”).
The terms “copy” and “phonorecord” are very broad. They cover “all of the material objects in which copyrightable works are capable of being fixed,” H.R. Rep. No. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5666.[1]
- Copies are “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,” including the material object “in which the work is first fixed.” 17 U.S.C. § 101.
- Phonorecords are “material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,” including “the material object in which the sounds are first fixed.” 17 U.S.C. § 101.
There are countless ways that a work may be fixed in a copy or phonorecord and “it makes no difference what the form, manner, or medium of fixation may be.” H.R. Rep. No. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. at 5666. For example, a work may be expressed in “words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia” and the author’s expression may be fixed “in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form.” Id.
Most works are fixed by their very nature, such as an article printed on paper, a song recorded in a digital audio file, a sculpture rendered in bronze, a screenplay saved in a
- ↑ The provisions of the House Report cited or quoted throughout this Chapter are identical to the corresponding provisions set forth in Senate Report No. 94-473 (1975).
