Copyright Part Two: Unprotected Works

The U.S. Copyright Office designates copyright protection for “… original works of authorship fixed in any tangible medium of expression… ” (see 17 USC § 102(a)). This begs the question: What is not protected? You learned from Part One of this series, a mere compilation of facts, like a telephone directory, is one type of work that is not protected. Here are five more areas of exclusion.

Implied Exclusions. Reading the language of the law implies that “works of authorship” be created. Therefore, works created by natural processes, like the patterns in fallen tree bark, are not protected. Further, the law implies that a human creates the work. Therefore, works created by non-humans, like a painting created by an artistic cat, are not protected.

Outright Exclusions. The U.S. Copyright Office has published Circular 34 that details a few items that are outside of copyright protection. Names, like your name or a school name or the name of store, are not protected by copyright. Titles, like the title of your novel, are not protected. Similarly, short phrases and expressions are excluded from copyright protection.

(Not So) Obvious Exclusions. An obvious exclusion from protection under copyright law is using someone else’s work within the work you create. In fact, per 17 USC § 103(a), “protection for a work employing pre-existing material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”

What may be less obvious is that there is no protection whatsoever for federal government works – not even by individual federal governmental employees. Examples include court opinions, federal laws and regulations, administrative reports, official photographs, personal photos taken by a soldier in war, and a public official’s diary.

No Ideas. Ideas, like concepts, solutions, and building blocks, are not protected. If an idea can be expressed through only one or a few ways, to the extent that the idea constrains its expression, the expression is unprotected. For example, the following ideas are unprotected under copyright law:

  1. concepts, like a game show
  2. solutions, like rules for a game, and
  3. building blocks, like rhythms and notes in musical works or the plot and theme of a novel.

An idea, procedure, process, system, method of operation, concept, principle, or discovery may be protectable under patent law.

Too Useful. Functional items, like lamps, are not protected. 17 USC § 102(b) basically says that there is no protection if you can answer YES to either of the following:

  1. Does the work describe, explain, or illustrate something (like game rules)?
  2. Is the work embodied within the article (like a blank form)?

A lamp design, for example, is not protectable because its shape is not physically separate from its functional aspect. For details on what is protectable, see Part Three of this three-part series. If a pictorial, graphic, or sculptural work has no aesthetic features separate from its utilitarian aspects, then it is not protectable. Basically, if what you are trying to protect is designed to be useful (like the body of a costume that is really used as clothing), it will not get copyright protection.