The Long List of Things that Can’t Be Copyrighted

Seeking legal advice online is always an iffy venture, but when it comes to copyright law the pitfalls seem to multiply.

And making a mistake when it comes to copyright can get you into serious legal and financial trouble.

If you’re an artist, writer, inventor, or other creative, it’s important to understand the basics of copyright so you can protect your work. It’s not just random strangers on the internet who’ll take and use your work because they don’t know any better. There have been plenty of cases of established brands and businesses using copyrighted works without permission.

But not all creative works can even be copyrighted.

While an original t-shirt design or graphic can be copyrighted, not everything is that straightforward. For example, did you know that the ingredients in your secret recipe can’t be copyrighted? Neither can your idea for a screenplay, your pen name, or the title of your novel.

Even creative works you’d think can be copyrighted actually can’t. While a graphic design printed on a t-shirt can be copyrighted, the t-shirt itself can’t be. Clothing designs can’t be copyrighted because it’s legally considered a “useful article” instead of an artistic expression. This leaves fashion designers especially vulnerable to design theft and knockoffs.

Then there are the grey areas, like fan fiction, where most creators could pursue copyright infringement cases but choose not to, because they understand the benefits of having a thriving community of supporters. Well, at least most of them do… Some aren’t quite so generous, such as Diana Gabaldon who thinks fan fiction is immoral, or George RR Martin who thinks fan fiction is lazy and bad. Both authors have been aggressive about protecting their copyrighted works.

How can you protect your own creative works from would-be thieves?

Check out the graphic below to see if copyright laws apply — and if not, what your other options are for protecting your work.

The Surprisingly Long List of Things that Can't Be Copyrighted

The Surprisingly Long List of Things that Can’t Be Copyrighted

Copyrights are a useful legal tool for writers, musicians, and artists to protect their work, but copyright isn’t applicable to everything. Here’s a closer look at what can and cannot be copyrighted — and which of those things are usually protected by trademarks or patents.

What Does Copyright Apply To?

  • All of the following kinds of works can be copyrighted:
    • Audio
    • Literature
    • Architecture
    • Video and film
    • Pictures, graphics, and sculptures
    • Music
    • Drama
    • Choreography
    • Computer code
  • For a work to be copyrighted, it must be fixed in a physical form
    • For example, a spontaneous dance number does not have copyright
    • A choreographed one that is recorded on video does have copyright

What Does Copyright Not Apply To?

  • 1. Works of original authorship that are not fixed in a tangible form
    • If someone has an idea for a fantasy novel, for example, they cannot copyright that idea
      • This is why there are many examples in fiction of a wise old mentor figure who comes to the hero and ushers them into a world of adventure, but only one Gandalf and Dumbledore
  • 2. Information that is commonly known and has no original authorship
    • For example, the statement “The sky is blue” cannot be copyrighted
    • This also applies to:
      • Calendars
        • This does not refer to calendar artwork
      • Rulers and tape measures
      • Height/weight charts
      • Lists and tables from public documents
      • Telephone directories
        • This information is considered in the public domain
  • 3. Blank forms, including:
    • Time cards
    • Graph paper
    • Diaries
    • Address books
    • Order forms
  • 4. Lists of ingredients, such as recipes, formulas, or labels
    • Things like cookbooks can sometimes be copyrighted so long as they have instructions or explanations
      • For a cookbook to be copyrighted, the US Copyright Office requires that the recipes be accompanied by “substantial literary expression — a description, explanation, or illustration, for example”
      • Even in these cases, the recipe itself does not have copyright
  • 5. Individuals’ pseudonyms, such as pen or stage names
  • 6. Product or service names
  • 7. Business, organization, or group names
  • 8. Domain names
  • 9. Titles of works
  • 10. Ideas or systems, including:
    • Concepts, processes, or methods of operation
    • Business practices
    • Scientific/technical methods/discoveries
    • Mathematical algorithms or principles
      • But there things can be patented
  • 11. Slogans, mottos, catch phrases, etc.
  • 12. Data and facts
    • The way the information is expressed can be copyrighted, but the data itself cannot be
  • 13. Federal government works
    • All works created by the federal US government are prohibited from being copyrighted, including:
      • Memos
      • Reports
      • Rules
      • Documents
        • These works can even be copied, redistributed, and sold
    • NOTE: State governments are not prohibited from copyrighting their works
  • 14. Laws, including:
    • Cases
    • Constitutions
    • Court decisions
    • Regulations
    • Statutes
      • These works are considered to be in the public domain
  • 15. Useful articles
    • In general, things that have a utilitarian function cannot be copyrighted
      • Clothing
      • Automobiles
      • Home appliances
    • Exceptions
      • While a building design is a “useful article,” it is also an artistic expression, and can be copyrighted
      • Toys are not classified as having a useful function, and thus can be copyrighted

The Strange Case of Fan Fiction

  • Fictional characters can be protected
    • Depending upon how distinct they are, fictional characters can be:
      • Copyrighted
      • Trademarked
  • Writers have different attitudes toward fan fiction
    • Some writers don’t mind fan fiction
      • J.K. Rowling — author of Harry Potter series
        • But she doesn’t like people creating “adult” content with her characters
      • Stephenie Meyer — author of the Twilight series
        • Doesn’t mind fan fiction
        • Thinks it is a waste of time for talented writers
    • Others do mind fan fiction
      • George R.R. Martin — author of Game of Thrones series
        • Thinks of his characters as his children
        • Considers fan fiction lazy and bad for writers
      • Diana Gabaldon — author of Outlander series
        • Thinks fan fiction is immoral
        • Said “it makes me want to barf”
  • Film companies are usually tolerant of fan fiction
    • Paramount Pictures encourages it
      • Think fan fiction is good for publicity but still maintains much control
  • Regardless of the liberal attitudes of authors and publishers, all make clear that their characters are protected content

Other Ways to Protect Work

While copyright law does not apply to these works, their creators do have methods of protecting them, namely through trademark and patent laws.

Trademarks

  • Words, names, and symbols used to:
    • Distinguish goods created by one company from those created by another
    • Identify what company those goods come from
  • Many things can serve as trademarks, for example:
    • Words
      • Gmail
    • Names
      • Coca-Cola
    • Symbols
      • The Nike swoosh
    • Designs
      • Any combinations of the above
    • Phrases
      • Where’s the beef?
    • Logos
      • IBM
    • Shapes
      • The four-fingered shape of a Kit Kat bar
    • Sounds
      • Intel’s five-note jingle
    • Fragrances
      • The cherry scent of Manhattan Oil’s synthetic engine lubricants
    • Colors
      • Companies that have trademarked their particular shades of color include:
        • Target → Red
        • T-Mobile → Magenta
        • Home Depot → Orange
        • 3M (Post-It’s) → Canary Yellow
        • John Deere → Green
        • Tiffany’s → Robin’s Egg Blue
        • AstraZeneca (Nexium) → Purple
        • UPS → Pullman brown
  • For something to serve as a trademark, it must:
    • Be distinctive
    • Be used for commercial purposes

Patents

Patents protect inventions and machines.

  • To receive a patent, an item must be:
    • New
      • Someone else can’t have already patented the same thing
    • Useful
      • The invention or machine in question must have a purpose and be capable of accomplishing that purpose
        • This is why inventors cannot secure a patent for devices like “perpetual motion machines”
    • Non-obvious
      • The invention or device must not be considered obvious by experts in the field
  • Things that can be patented:
    • Processes and methods
    • Living organisms (plants, animals, fungi, microbes, etc.) that have been altered for a specific purpose
    • Machines
    • New compounds (such as chemicals or pharmaceuticals)

While copyright law provides a way for intellectual property owners to protect their property, copyrights don’t cover everything. But between trademarks and patents, IP owners almost always have a legal way to keep their property safe.

Sources: inventors.about.com, legalzoom.com, newmediarights.org, biztaxlaw.about.com, copyright.gov, bitlaw.com, law.cornell.edu.com, brighthub.com, legalzoom.com, ibm.com, inc.com, tmsearch.uspto.gov, uspto.gov, biotech-now.org, patentlawip.com.

Sources

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