II. What can and can’t be copyrighted?
To recap, copyright is the legal right that one has to control copies and distributions of their work. The copyright holder cantemporarily disallow others from copying, changing or distributing their work. Its purpose is to incentivize creators to create so that the public can benefit from their continued productivity. Knowing those two things helps make sense of the rules regarding what can and can’t be copyrighted.
To copyright something, only three elements are required: (1) fixation, (2) originality, and (3) expression.
(1) Fixation: a creative idea must be locked in a permanent state. To protect a song, for example, it must be notated on paper or recorded onto tape or CD. A live performance of that song won’t be protected.
(2) Expression: Expression goes hand-in-hand with the fixation requirement. Ideas can’t be copyrighted, but the “expression” of an idea can be copyrighted. For example, the idea that a movie should be made about a suave, British superspy who uses quirky technology can’t be copyrighted, but the James Bond films, the expression of that idea, certainly can.
(3) Originality: Creative work must meet a basic level of originality to be considered the product of an author. Direct copies of someone else’s work can’t be copyrighted, and neither can facts, short phrases, titles, etc. For example, the names and addresses in a phonebook can’t be copyrighted but the photo on its front cover most certainly can.
These three requirements require a bit more depth to understand fully.
To get copyright protection, you must fix your work “in a tangible medium.” That means to copyright your song, you first need to record your song and write down the lyrics. To copyright your story, it needs to be written on paper or saved on your word processor.
If you perform your song live for a friend without recording it, notating it or writing down the lyrics, your song is not protected by copyright. Regardless of the quality of your song, you won’t receive copyright protection until the song is in a state that is capable of being reproduced.
“Fixed” work is defined as a work that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” For example, a sandcastle or ice sculpture that you worked all day on would probably not be considered fixed so it’s not copyrightable. However, as soon as you take a photograph of your sandcastle or ice sculpture, thus fixing it in reproducible medium other than your own memory, the image and design of the sandcastle can receive legal protection.
Imagine asking a friend for a movie recommendation. You tell your friend that you want to see a movie about a suave government spy who uses gadgets and is irresistible to women. That synopsis is an idea.
If that person handed you a James Bond DVD, that would be an expression of that idea. That person could also hand you a DVD of the movie xXx or its sequel or xXx: State of the Union or even any of the Austin Powers movies. Those would all be expressions of that same idea, too.
The Copyright Act protects expressions. It does not protect idea[s], procedure[s], process[es], system[s], method of operation[s], concept[s], principle[s], or discover[ies] . . . .”
The reason for the Act’s demarcation makes sense if you remember that copyright laws exist solely for the public’s benefit. The law wants everyone who is interested in writing about government spies to actually write about government spies. The public does not benefit from someone merely thinking about writing a novel. So if someone doesn’t express their ideas, the public does not benefit, and thus, the idea cannot be copyrighted.
If ideas were protected, whenever a person came up with an interesting, memorable character for a film of book, it would bar everyone else from making a similar character. The same could be said about familiar plots or settings. If these could be copyright protected, everything in the human experience would quickly be copyrighted. After all, some argue that there are at most 36 different plots of stories that can be told and every story told is just a variation of one of those 36 plots.
Expression is easier understood when you consider the concept of parallel independent creation: copyright laws protect your specific expression of an idea, but interestingly enough, it doesn’t prevent someone else from independently generating that same expression.
For example, imagine you are a poet in Brooklyn, New York, and you’ve just finished your 10-line masterpiece that you’ve been writing everyday at the coffee shop for the last year. Meanwhile, at a bar 3,000 miles away in California, Average Joe writes that same poem, word for word on the back of a napkin while waiting for his drink. Since both of you independently thought of that poem and generated the expression without ever being influenced by the other’s work, both of you would get full copyright protection in your poem. It wouldn’t matter who wrote it first.
It’s a common saying that “everything has been done before.” As I said above, some smart people say there are no more than 36 stories that can be told. Everything we’ve ever seen or read is just a variation on one of those stories.
Copyright law takes this into consideration by setting a low threshold for originality. Though no one can definitively say what is original and what isn’t original, examples from past cases offer helpful guidance.
A photograph on the front cover of a phonebook is clearly an original work. But a list of names and addresses listed alphabetically in a phonebook is not original, as the Supreme Court declared in Feist Publications, Inc. v. Rural Telephone Service Co. Somewhere in between those two examples is the cutoff point between protected originality and non-protected unoriginality.
The law also recognizes that some creative works, especially those in genres like science fiction and westerns, share lots of common elements that may not be copyrightable. Science fiction stories are full of spaceships, aliens, or gruff space marines; westerns are full of horses, saloons, and quick-shooting cowboys. Some elements of stories like these are often so formulaic that they can’t be protected by copyright. The law calls these non-copyrightable aspects of works as scenes-a-faire.
Finally, it’s worth noting that the law isn’t concerned with the quality of the work when it looks at originality. A child’s drawing in crayon is just as copyrightable as a master-painter’s greatest work. Low budget pornography is just as original and worthy of copyright protection as art films or high-budget summer blockbusters.
In conclusion, it’s more likely than not that if something fits the common sense definition of creative work, it will satisfy the originality requirement.
Putting it all together
Generally, titles, short phrases, facts, and utilitarian language can’t receive copyright protection. This makes sense because they are either too much like ideas or not original enough to meet copyright law’s requirements. This means that even if someone spends a lot of time and mental energy generating a title, I can copy it and use it in my own work in any way I want without issue.
Copyright law protects a person’s expression; it does not protect facts. A person who discovers a fact about the world (like a biologist who discovers a fact about human cellular structures, a historian who discovers a fact about Napoleon’s life, or a journalist who learns secret information about a news event) is not the author of that fact under copyright law. [ Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). ] That person has neither expressed anything to create the fact nor does a fact of the world involve any creative originality.
Said another way, facts may be discovered, but that discovery isn’t an act of authorship.
For example: Imagine you’re a historian and you’ve devoted your life’s research to proving through the archeological record that Genghis Khan, rather than being an aggressive Mongolian warlord, was actually a peace-loving Mongolian philosopher. After searching for archeological evidence on the Mongolian Steppes for a decade, finally you find evidence that definitively proves your hypothesis. You publish this all in a detailed biography of Genghis Khan’s life that rocks the history world.
If a movie producer wanted to make a movie based on Genghis Khan being an ancient peace-loving beatnik using all of the details you describe in your book, he wouldn’t have to pay you a dime because you merely learned a non-protectable historical fact.
But if the movie producer wanted to make a movie directly based on the biography that you wrote (where he uses lines from your book or the structure of your book), he would need your permission because he’s using the rights to your “expression” of the historical fact that you learned.
Other examples of things that would be considered non-protectable facts.
-The President of the United States is Barack Obama
-Mosquitoes are carriers of malaria
A fact can’t be protected even if you’re the one who independently created the fact or you’re the only person who knows about the fact:
-You can see me perform my secret concert at Balboa Park tomorrow night
-This watercolor in my closet that I painted is blue
Neither copyright nor trademark law protects titles of individual works. The only possible protection for titles is through unfair competition laws.
-The Girl With the Dragon Tattoo
-Gone with the Wind
Phrases are not protectable under copyright law.
-“A bird in the hand is worth two in the bush.”
-“A buyer’s market.”
However, short phrases may be protected under some other legal scheme, like trademark, rights of publicity, or unfair competition law.
“Here’s Johnny” – a protected trademark of Johnny Carson
“Just Do It” – trademark of Nike
“I’m Lovin’ It” – trademark of McDonald’s
If there’s only one way to accurately communicate a concept to someone, then the language you’re using is utilitarian. Utilitarian language is not protectede by copyright law, because if it were, someone could get the exclusive rights to basic explanations like the instructions on how to assemble a chair or bake a cake. If there’s only one way for people to communicate an idea, the law doesn’t want anyone with control over people’s ability to communicate freely.
By contrast, patent law protects truly original, novel, and useful instructions with practical value, and trademark law gives people limited protection to use utilitarian language in their business transactions or on products.
Some examples of non-protectable utilitarian language are:
- “Turn the screws counterclockwise with a Phillips-head screwdriver," in instructions to build a desk.
- “Crack two eggs into a preheated skillet."
If you have any questions about whether your work meets the minimum standards to receive copyright protection, or if you just have questions about copyright law in general, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
Frequently asked questions about what can and can’t be copyright protected?