“Copyright protection subsists . . . in 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.”
In essence there are three requirements. First, the work to be protected must be created by an author. Second, the work must be original. Finally, the work must be fixed in a tangible medium or expression.
An author tends to be an easy requirement to get. There can be an single person who wrote the story or play, created art such as a painting or sculpture, or otherwise was the idea generator and active person in composing the work. Alternatively, there can be more than one author. This is typically seen in large scale, multifaceted works. In this instance, think of movies, video games, or other works where the credits are many names long. Both of these situations count as having an author. It is when there is no active human hands behind the creation that the authorship requirement will not be met.
Originality is more challenging to describe, though the hurdle is fairly manageable. Originality means (1) the author independent created the work and (2) there was some minimal degree of creativity. Independent creation requires that the author created something of their own, instead of merely copying another previous created work or works. The creativity requirement is a nod to the fact copyright originally is meant to protect the arts. A list of names is not creative, but an advertisement could be as there is a communicated message in an interesting way. The message may not be unique or novel, yet without the advertisement being copied from a prior work there could be copyright protection.
Finally, there is a requirement of the work being fixed in a tangible medium. Fixation is defined as “sufficiently permanent or stale to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Historically, this was a fairly simple determination. A book is fixed. A painting is fixed. A sculpture is fixed. These are all semi-permanent creations which can last until the underlying parchment, paper, wall, stone, or other medium crumbles due to age. With the dawn of the internet age and computers, fixation has become more difficult. There is the special rule that fixation can be made “simultaneously with its transmission” for live sports events. However, once materials and art is put into the digital space, the question is if there is a tangible medium. For the time being, the answer is yes. The reason goes to the scope of a copyright: “now known or later developed.” The key to fixation is that the work can be seen, read, or otherwise appreciated. Much less important is the medium for fixation.
These three requirements must be satisfied for copyright protection to exist at a minimum level. Additional protections can be gained through filings and other legal processes. It is through those filings that some rights and remedies are granted.