Things You Can and Can't Copyright
Copyright is a form of intellectual property right that protects original works of authorship fixed in a tangible medium of expression. This right is critical to the livelihoods of millions of creative people, including authors, artists, actors, playwrights, composers, songwriters, sculptors, architects, computer programmers, bloggers, poets, video game designers, professional athletes, etc. If you are a creative person, then understanding the things you can and can’t copyright can help you enjoy the fruits of your labors.
Note: The author is a retired intellectual property attorney with 15 years of experience helping his private and corporate clients protect their patent, trademark, copyright and trade secret rights.
Constitutional and Statutory Basis for Copyright
Copyrights are so important that their legal basis is provided in Article I, Section 8 of the Constitution: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Congress exercised its power to protect copyrights in Title 17 of the U.S. Code. § 102(a) states that: “Copyright protection subsists, in accordance with this title, 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.”
Common Requirements for Copyright
Through its chosen language, Congress has imposed common requirements on copyright, including:
• “Original works of authorship”: To be eligible for copyright, a work must be original. This means it must have been created independently by the author. The standard for originality is low, and a work can be copyrighted even if it is similar to existing works, or even if it is of low quality, ingenuity or creativity.
• “Fixed in a tangible medium of expression”: To be eligible for copyright, a work must be fixed in a tangible medium of expression. The tangible medium can take many physical forms, including a writing, a computer’s random access memory (RAM), the media used for recording video or audio, or a piece of scrap paper. The work can be fixed for even a short period of time, such as a work fixed briefly in RAM.
• “From which they can be perceived … either directly or with the aid of a machine or device”: To be eligible for copyright, a work must be fixed so it can be perceived. The perception can be made directly by a human being, or indirectly such as by storing certain data in RAM which can be read by a computer.
Things You Can Copyright
Things You Can Copyright
| Example(s)
|
|---|---|
Literary works
| The novel "A Wanted Man", by Lee Child
|
Musical works, including any accompanying words
| The song "Somebody that I Used to Know", by Gotye
|
Dramatic works, including any accompanying music
| The play "The Lion King", and its sound track
|
Pantomines and choreographic works
| The dancing on "West Side Story", but remember it must be fixed in a tangible medium of expression such as a videotape
|
Pictorial, graphic and sculptural works
| The statue "Unconditional Surrender" in San Diego
|
Motion pictures, and other audiovisual works
| The movie "The Hunger Games"
|
Sound recordings
| The sound recording of Martin Luther King's "I Have a Dream" speech
|
Architectural works
| The architectural plans for the Chrysler Building
|
Compilations
| The album "Beetles Greatest Hits", but copyright in the compilation extends only to the material contributed by the author of the compilation
|
Derivative works
| Kid Rocks' version of "Sweet Home Alabama", but copyright in this derivative work only extends to the material contributed by Kid Rock
|
Tatoos
| Tatoos can be protected if they meet the common requirements for copyright, such as being fixed in a tangible medium and are original works of authorship
|
Pictorial, graphical or sculptural works that can be identified separately from the utilitarian aspects of an object
| A carving on the back of a chair.
|
Things You Can't Copyright
Things You Can't Copyright
| Example(s)
|
|---|---|
Ideas, methods or systems
| Making or building things, scientific methods or discoveries, mathematical principles, formulas, algorithms, business processes, or any other concept, process or method of operation. But remember that ideas, methods or systems can be protected by patents or design patents
|
Commonly known information
| Telephone directories, standard calendars, measurement charts, tape measures, rulers, commonly-used phrases.
|
Works not fixed in a tangible medium of expression
| An improvised dance that is not videotaped or otherwise recorded
|
Names
| Business names such as "Panera Bread", but business names can be trademarked if they act as an indication of source
|
Titles
| Titles such as "The Hunger Games"
|
Short phrases or expressions
| "It's so hot you could fry an egg on the sidewalk"
|
Recipes, unless accompanied by substantial literary expression
| A list of ingredients and simple directions for making a Western omelette
|
Clothing (e.g., shirts, dresses)
| Fashion articles are not copyrightable, but specific fabric patterns can be copyrighted and clothing can be protected by patents or design patents
|
Any work of the U.S. Government
| Any work created by the U.S. Government cannot be protected, but the U.S. Government can own copyrights that are transferred to it
|
An author's creative ideas (as with other ideas)
| An idea for a new TV series, movie, play or song
|
Facts
| A list of the geographic area of the 50 states, regardless of how much time it took to gather the facts
|
The mechanical or utilitarian aspects of a useful article
| Clothing, furniture, machinary, lights. But a pictorial, graphical or sculptural work that can be identified separately from such objects can be copyrighted
|
Things Where Copyright is Still Undecided
Thing
| Explanation
|
|---|---|
A computer language
| In May 2012, a judge ruled that Google's use of parts of Oracle's Java programming language to create its Android system was lawful. Oracle has appealed.
|
Disclaimer: The author has retired from the practice of law. This cursory article is for information purposes only, is not legal advice, and does not establish any attorney-client relationship. The author encourages any reader with questions about what can and can’t be copyrighted to contact an attorney.
