What can’t be copyrighted?
After discussing why copyright laws were created, who it helps and who it hurts, we discussed the wide variety of creative works that copyright protects and the minimal requirements those creative works need to gain protection.
The question you might come away with may be, “If so many things can be copyrighted, what isn’t protected by copyright? Is the law just out of control protecting everything?”
There are several categories of things that can’t be copyrighted. A common thread to most of them is that they lack the necessary creativity to be eligible for copyright.
1. Ideas
This includes procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Plans, methods, and devices, are also not protectable. However the particular manner in which they are expressed or described in a writing can be copyrighted.
Example: If a plan for a building is expressed in blueprints, the original, aesthetic elements of the blueprints can be protected by copyright.
Example: If an entrepreneur has a method of operation for a new business, that method is not protected, but if she writes down the method in the form of a business plan, the business plan document itself is protected.
2. Facts (including data)
Although specific expressions of facts and data are copyrightable, the facts and data themselves are not copyrightable themselves because they are facts. Thus, the population of the United States is not a copyrightable fact, although a particular expression of this data in the form of a report or article is.
Another simple illustration of facts not being copyrightable is the news. Although print, video and online expressions of news are copyrightable, the news itself is not copyrightable. This limits censorship, allows discussion and debate on blogs, and promotes public access to and the free exchange of information.
3. Information already in the public domain
Works consisting entirely of information that is common property containing no original authorship are not copyrightable.
For example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.
4. Works made by the federal government
Works of the United States government are not copyrightable. This includes reports, memos, documents, rules, agency publications, etc. Such works may be freely copied in whole or in part, and may even be repackaged and sold. Individual State governments, however, are not prohibited from copyrighting their works, so check the state government's website terms and conditions or Ask Us and we'll try to take a look for you. States usually do not assert copyrights, as a practical matter, although computer software and other high-cost proprietary items may be the exception.
5. Laws (including court decisions, statutes, cases, regulations, and constitutions)
Court decisions, statutes, cases, regulations, and constitutions are not copyrightable, as courts have repeatedly held that such works are in the public domain.
6. Short phrases and titles
Words and short phrases are not copyrightable. This includes as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; and mere listing of ingredients or contents.
7. Blank forms and works designed for recording information
Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information. All are not copyrightable.
For more details and analysis, see Baker v. Selden.
8. Fonts
Fonts may or may not be copyrightable. When used for the functional purpose of allowing someone to record information on a typed document, fonts are not protectable. But when used as aesthetic elements of a design, fonts can be protected.
9. Domain names (also known as web addresses or URLs)
The reason why domain names aren’t copyrightable can be rationalized in a number of ways. For one, they can be seen as un-protectable factual information because they serve a functional purpose to show a location. Or they can be unprotected due to lacking originality. Or they can be unprotected because they are short titles or phrases, which can’t be protected.
10. Mechanical or utilitarian parts
Objects with useful functions like “lamps, bathroom sinks, clothing, and computer monitors” are unprotected. Many designs of consumer products (like distinct-looking coffeemakers) therefore aren’t copyrightable.
All that said, this rule starts getting more complicated when you learn the major exception to it: “Features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article,” can be protected by copyright.
For example, a truck cannot be copyrighted, but a painting on its side can be copyrighted, because you can separate the truck from the truck’s practical, functional features. This is also true of clothing: a design or a cut of a skirt can’t be copyrighted, but the print (for example, drawings of flowers) on the skirt can be copyrighted. This even includes entire costumes, because Halloween costumes do serve the same utilitarian purpose as all other clothing: to keep the wearer from being naked when they walk outside. [source]
It might be helpful to clarify this using the language from Brandir International, Inc. v. Cascade Pacific Lumber Co:
“if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.”
An Example: Belt buckles that a court described as “sculptured designs cast in precious metals—decorative in nature and used as jewelry” were separate enough to be protected by copyright even though belts are not generally protected. This happened in Kieselstein-Cord v. Accessories by Pearl, Inc.
And a counter-example: Mannequins of the human torso with hollowed backs were denied copyright protection because the court believed that the design of the mannequins was dictated entirely by their utilitarian function, so it was not conceptually separate. This happened in Carol Barnhart Inc. v. Economy Cover Corp.
Interestingly enough, Congress and courts consider toys as not having useful functions, so they’re one consumer product that isn’t subject to this rule. This is why copyright protection is available to toys like Barbie dolls.
For more information on what can’t be copyrighted, consult 37 CFR 202.1 “Material not subject to copyright.” as well as "What can and can’t be copyrighted?"
As discussed above, copyright protection pertains to original expressions of an idea, but not ideas themselves. While the "expression" of a particular idea is copyrightable, for example, an article, journal, book, movie, etc., the idea itself is not copyrightable.
Therefore, while the particular "expression" of an idea is copyrightable, others are free to discuss the same idea and create other "expressions" regarding that same particular idea; they just can't copy a substantial part of someone else's work in doing so. Here you might think of the general idea in Romeo and Juliet, for instance, as star-crossed lovers. Anyone can use that idea as the basis for a story, or podcast, or song.
The same thing applies to procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Keep in mind however, while these are not copyrightable, they may be patentable. But that is another story and another entire area of law. So, like ideas, particular "expressions" of these processes, systems, methods of operation, concepts, principles, and discoveries may be copyrightable. However, the processes, systems, methods of operation, concepts, principles, and discoveries themselves may be freely reproduced by anyone without violating copyright law.
Information in the public domain is also not copyrightable. But what does "public domain" mean? Public domain is, with respect to copyright law, a status of works of authorship that are not protected under copyright because either the copyright has expired or never had such protection. Works in the public domain may be freely copied in whole or in part.
If you are a creator with work that falls into a category unprotectable by copyright law and would like to discuss alternatives the law provides you to help protect and fairly distribute your content, 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.
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