August 20, 2012

What is and is not Copyrightable?

Copyright protection is a protection extended to creative works of authorship, and the authority for this is listed in Section 8 of Article 1 of the U.S. Constitution. The purpose of copyright protection is that it is intended to reward creative efforts and to provide an incentive for future creation.



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Hello, my name is John Di Giacomo, and I'm an attorney with Traverse Legal, PLC. This is a Traverse Legal radio broadcast concerning copyright protection. Today, I would like to talk to you a bit about what is and is not copyrightable.

Copyright protection is a protection extended to creative works of authorship, and the authority for this is listed in Section 8 of Article 1 of the U.S. Constitution. The purpose of copyright protection is that it is intended to reward creative efforts and to provide an incentive for future creation.

Copyright protection extends to creative works that are fixed in a tangible medium of expression. What does that mean? That simply means that copyright rights extend to works when they are fixed in some kind of semi-permanent form. So, for example, when a photo is taken and fixed on a flash card, or when a work of authorship, such as a manuscript is written and saved to a hard drive, copyright protection extends to that work.

Clients often ask, "Can I copyright my idea?" The short answer is "No." Copyright does not extend to ideas, as well as several other categories. Specifically, copyright does not extend to procedures, such as medical procedures. It does not extend to processes, such as a method or way of doing business.  

Additionally, it does not extend to systems. It does not extend to methods of operations. Again, much like the business example, if you have a method of operation of a certain technique, copyright protection will not extend. Copyright protection additionally will not extend to concepts, or principles, or discoveries.

A classic example is whether or not a copyright can extend to a math problem. Typically, the answer is "No." There are some exceptions in the realm of software, where copyright protection may extend to an algorithm. But for the most part, the general answer is "No." Copyright protection will not extend to principles or discoveries, especially those of the natural world.

The big area where questions often arise is, "Can copyright extend to a word, or a short phrase?" The answer is simply "No." Copyright protection will not extend to words, short phrases, names, titles, or slogans. So, copyright protection will not extend typically to the name of your book. It will not extend to the name of your stage persona.

But, those areas are protectable by trademark law, because short words and phrases, titles, and slogans can all be protected by a trademark registration, because those things can act as a designator of origin or source. Copyright protection additionally does not extend to familiar symbols or designs, such as the Fleur-de-lis, which is a traditional French-style design. Copyright protection would not extend to the extent that that design is located within an otherwise copyrightable item.

It does not extend to variations of typographic ornamentation. So, for example, new fonts are very difficult to copyright. Additionally, coloring is not usually copyrightable, unless it is connected with some other form.

Listings of ingredients, unless they contain some additional work, are not copyrightable. A recipe, generally speaking, is not copyrightable. But if there is some additional creative material added to the recipe, such as some fanciful prose, a recipe may be eligible for copyright protection. But the actual useful part of the recipe is not.

Additionally, and this goes back to one of the seminal cases in copyright history, blank forms and accounting ledgers are not copyrightable. Baker v. Selden was one of the first copyright cases where the court said, essentially, facts are not copyrightable. A fact is something like a blank form. At that time, the item in question was a ledger for a new style of accounting. Finally, informational resources, such as calendars, tape measures, and rulers, are not copyrightable because they're used to convey factual information.

I hope this has given you a little background on what is and is not copyrightable. If you have any additional questions with regard to copyright protection, or if you would like help in registering for copyright protection with the U.S. Copyright Office, do not hesitate to contact one of our copyright attorneys today at Traverse Legal.

This has been a Traverse Legal radio broadcast. My name is John Di Giacomo, and thank you for listening.

You’ve been listening to Copyright Law Radio, where copyright infringement, licensing, litigation, and news are always the topic of the day.  Whether you are a copyright attorney or a client, we are the number one resource for all your copyright questions.


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