5 Things That Can’t Be Copyrighted

photo credit: El Mariachi 94

Modern copyright law can feel extremely broad at times. Every creative work made, whether it is a doodle on a napkin, a photograph or a poem, once it is fixed into a tangible medium of expression, the creator holds the copyright to it. No notice nor any further action is required (though registration with the U.S. Copyright Office has many added benefits).

Still, there are many things that can not be copyrighted. They either don’t fall under the jurisdiction of copyright or don’t qualify for its protection. There are also exemptions and that place some content immediately into the public domain.

So if you’ve ever wondered about the things you can’t copyright, here is a short list of five of the more important ones.

1. Titles and Names

Copyright protection does not extend to titles, names, slogans or short phrases, the Copyright Office has made that much very clear. You can not copyright your name, the title of your post or any short phrase that you use to identify a work.

The reason is that copyright is designed to protect works of creative authorship, it is not designed to protect how that work is identified in the marketplace, the same goes for people and places. Furthermore, such short phrases rarely meet the requisite level of creativity to be considered for copyright protection.

Caveat: Titles may not be copyrighted, but if they are used to identify a business, good or service in the marketplace, they can be given trademark protection. If you use a title in a way that might cause confusion in the marketplace, there could be trademark issues. However, if you want to make a post entitled “5 Things That Can’t Be Copyrighted”, you are free to do so.

2. Ideas

Ideas can not be copyrighted because they are not fixed into a tangible medium of expression. For a work to be copyrighted, it has to be written down, saved to a hard drive or somehow otherwise fixed.

For example, if you give a speech but fail to write it down first and it isn’t recorded, there is no copyright protection. Likewise, if you tell an idea to a friend, you don’t receive copyright protection if they run with it and use it for themselves, that is, unless you write it down.

However, even ideas that are fixed do not receive protection in and of themselves. Rather, it is the expression of the idea that is protected. My “5 Things That Can’t Be Copyrighted” post is fixed, but you can certainly write your own post with the same title and idea. However, you can not use my exact words, unless, of course, you follow my CC license.

Caveat: When it comes to derivative works, there can be a lot of gray area between an uncopyrightable idea and an infringing derivative. You can, for example, write your own book about a boy wizard and a wizard school, but you can’t use any of the characters from Harry Potter. Where the line is drawn is often murky and usually decided on a case-by-case basis. Also, in many cases ideas can be patented, such as inventions, but that enters into another area of intellectual property.

3. Works By the U.S. Federal Government

Works by the U.S. Government are placed directly into the public domain as the Federal government is barred from holding copyright in its work. This is why NASA’s images, which are very popular on the Web, can be freely copied and shared and also why laws and statutes can be posted anywhere online.

There are many reasons for this, the first being that taxpayer money is spent on creating the works so it is fair they should be given back to the populace. Also, it’s a freedom of speech issue as the government can not use copyright to stifle criticism.

Caveat: This is not true in all countries. Australia, Canada and the UK all have crown copyright, that enables the government to hold copyright protection to certain works. Also, the U.S. government can hold copyrights in works if they transferred to it, for example by contractors. Also, the government has other laws, such as state secrecy laws, to prevent the distribution of information.

4. Works Without Authorship/Facts

Though the photos that come with your calendar are probably copyright-protected, the calendar itself is not. Likewise, you can’t copyright the lines on a notebook-ruled paper or, sadly for the phone companies, even telephone directories are not protected.

The reason is that a work has to have a requisite level of creativity in order to qualify for copyright protection and if a work is just a repetition of facts without any creativity, it isn’t protected. This is true even if a great deal of effort went into making the product, as with a phone book.

Likewise, facts and information can’t be copyrighted though the expression of those facts often can be.

Caveat: The level of requisite creativity is actually fairly low. A phone book may not be copyright protected, but a top ten list of the funniest names in the phone book might be. Also, other countries, including the UK and Australia, follow a “sweat of the brow” doctrine that says a collection of facts can be copyrighted if the collector underwent a great deal of effort to compile them (and didn’t merely copy from another source).

5. Fashion

This may surprise many, but fashion designers, currently, enjoy no copyright protection in their work. Their designs are not covered under the current code even though architectural and even vessel hulls are protected.

The reason is because fahion pieces are considered useful articles and, as such, only enjoy copyright protection for certain elements and “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

In short, a pattern on a shirt might be copyrightable, but the shirt itself is not. Likewise, an intricate belt buckle design might qualify for protection but not the belt itself.

However, the overall cut, colors and style do not enjoy any protection at all.

Caveat: Fashion designers can, if they wish to go through the time and expense, paten their designs. Also, as mentioned above, elements of a useful article may qualify for copyright protection separate from the work itself. Finally, this is not universally true and legislation is almost constantly being circulated to weigh the possibility of expanding copyright protection to cover fashion. Finally, do note that trademark still protects the names of the companies that make and distribute the clothing.

Bottom Line

Copyright is everywhere. Every video, every picture, every written piece, every audio file, every sculpture, every building design created this year will be copyright protected, at least initially and at least to some degree.

However, there are places that copyright’s protection does not reach and those places are worth noting just as strongly as what it does protect.

Regardless, the next time someone says that everything is copyrighted these days, here are five examples of things that aren’t and, in most cases, likely never will be.

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