OfflineHello out there!
I have created a set of flash cards for students and practitioners of Chinese medicine. The content for the cards comes from a previously published (already copyrighted) book (used with permission), and the images for the cards are copyright-free photographs found online. Can and/or should I copyright the overall design and concept of the cards (the arrangement of information - how I've combined the images with the text, which I haven't seen done before in this particular way)? From perusing legal FAQs, my understanding is that one cannot copyright a method or system, but how about a design/concept when the design/concept involves the arrangement of previously copyrighted and copyright-free content?
Any advice would be greatly appreciated!
Print Me!
What you have created is known as a "derivative work," a new work that incorporates existing copyrighted material. As with purely original creations, you can have a copyright in a derivative work, but only to the extent of the new and creative concepts that you have added to the pre-existing works (in this case, your selection of the material to use and the design and arrangement of the cards).
There is a minimum (but very low) level of creativity that is required for copyright protection. For example, the U.S. Supreme Court has held that the alphabetical arrangement of names in a phonebook is not sufficiently creative to warrant protection. However, anything more creative than that would likely be protected. More information on works entitled to copyright protection can be found here.
If the additional concepts that you have added to generate a derivative work are creative enough to be entitled to copyright protection, that protection inheres immediately to the work once it is "fixed in a tangible medium of expression." (In other words, you actually need to have created the work; there is no protection for ideas or concepts that have not yet been expressed in a fixed medium.) You do not need to attach notices to the work or file any paperwork to have copyright protection. However, you can gain substantial additional rights by using a copyright notice and registering the work with the U.S. Copyright Office. More information on that process can be found in our Legal Guide.
It is important to remember that the mere creation of a derivative work does not give you any rights in the underlying works that you are using, and it is quite possible to infringe the copyrights in the underlying works in this manner. Your use of the underlying works might be sufficiently "transformative" to qualify your derivative work as a fair use, but not all derivative works are fair use. More information on fair use can be found here.
If your use is not a fair use, you normally must obtain permission before using someone else's copyrighted works (see our Legal Guide on this topic). Sometimes this permission has already been granted to the public at large in the form of a "Creative Commons" license or a designation of the work by the creator as being in the public domain. It is dangerous, however, to presume that a photograph found on the Internet is in the public domain, even if there is no copyright notice attached to the photograph. If there is no clear Creative Commons license, declaration of public domain status, or other statement attached to a photograph granting permission for use to the public, the photograph is subject to full copyright protection and cannot be used without permission. Even where there is a Creative Commons or other public license, you must abide by the terms of the license (which might include such obligations as not using the work commercially or providing attribution to the photographer). Finally, it is important to be careful of whether an individual purporting to grant rights to the public to use material found online is actually the copyright holder or otherwise has authority to grant those rights.
I hope this helps.