What Cannot Be Copyrighted?
The Internet has exponentially increased the volume of intellectual property. Writers, musicians and artists of all types have long sought to protect their creations from exploitation and with good reason, however, not everything can be copyrighted. Learn U.S. copyright law along with specific information regarding things that fall outside the scope of copyright protection.
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History of U.S. Copyright Law
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When the Constitution of the United States was ratified in 1787, it gave Congress the power "to promote the Progress of Science and useful Arts, by securing limited Times to Authors and Discoveries." The founding fathers realized that creating a new nation required the encouragement of ideas and the accumulation of intellectual capital. Protection for the creator was the foundation for building this vast cache of information. The original United States copyright law was signed into law by George Washington in 1790. Today, the Copyright Office falls under the jurisdiction of the Library of Congress as it has for over 100 years.
Misconceptions
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Copyright law is in place to protect original works of authorship. The law allows the original creator control over how, when and by whom a work may be reproduced. Patents, on the other hand, protect inventions and discoveries, and trademarks protect the words, phrases, symbols or designs that identify a company or product.
For example, a song is copyrighted; the phonograph on which it's played is patented; and the logo (RCA's image of the dog looking into the speaker) is trademarked. -
Is it Tangible?
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Although copyright is implied to all creative works, first and foremost, the work must be in a fixed, tangible form. An idea cannot be copyrighted. A tangible expression of the idea is eligible for copyright protection. For instance, a dance performance that has not been notated or recorded in some format, is ineligible; however, the notes of the choreographer along with a recording of the performance can both be protected by the copyright law. In similar fashion, an impromptu speech cannot be copyrighted unless, of course, the speech was written or recorded in some fashion. Then it is the writing or recording that can be protected. Ideas alone cannot be copyrighted--only the tangible expression of those ideas can be.
Names and Phrases
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Despite the fact that a book is protected by copyright law, its title is not. Additionally, slogans and short phrases may not be copyrighted although they may be protected by the trademark law. Many companies spend millions of dollars developing slogans and logos to identify their product or brand. While Nike's globally recognizable "swoosh" is trademarked, it is not copyrighted. Similarly, while a software program is copyrightable, its name is not. What Microsoft writes is clearly protected. What you call it is not. The music your band writes, and if recorded, your performances can be copyrighted but he name of your band cannot be. Original authorship (words, images, design) on your website may be copyrighted; your domain name may not.
Facts and Contents
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A fact is a fact is a fact. Therefore, no copyright applies. If you do something creative with a fact or use it in support of a published idea or opinion, the outcome is protected. The fact is not. Likewise, copyright does not apply to the listing of contents or ingredients for that matter. Unless your grandmother's famous recipe for apple pie is accompanied by a substantial creative or literary expression, it's not eligible for copyright protection. If it's combined with a collection of recipes in a cookbook, it's more likely that it can be protected. But beware, if there's anything secret about it, remember that copyright applications and deposit copies are part of the public record.
Methods and Procedures
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Procedures, methods and processes cannot be copyrighted. Even if you've developed the best way to get from point A to point B, your method or procedure can't be copyrighted. The map, drawing, diagram or written explanation of it can be. These things are similar in nature to ideas. They cannot be copyrighted, but their expression, that is their final tangible form, can be protected. Descriptions, explanations and illustrations are copyrightable. The genius idea that brought you to create the method, procedure or process isn't covered.
Common Property and Public Domain
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Any work that consists entirely of common property (standard calendar, height/weight charts, and tape measure/rulers) cannot be copyrighted in and of themselves. If you add original authorship to common property, then your work can be protected. The key is "original authorship" and adding creative value to it. Additionally, works that are in the public domain (the original or extended copyright has expired) cannot be copyrighted in the original form. If you create a derivation or add creative value to it thus making it something new, it can be copyrighted. For instance, a short story written in the beginning of the nineteenth century cannot be copyrighted but your critique and analysis of it can be.
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