Bitlaw

Works Unprotected by Copyright Law

Executive summary:

Some types of material are ineligible for copyright protection. Generally, these materials are either protected by some other intellectual property, or have been considered inappropriate for protection. The following unprotected works are discussed in greater detail below:

Unfixed:

Works that have not been fixed in a tangible form of expression are not protected under the Copyright Act, since fixation is one of the prerequisites for copyright protection (see the BitLaw discussion on obtaining copyright protection for more information). For example: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded are both ineligible for copyright protection. For many years, unrecorded music concerts were also unprotected by copyright law because they were not fixed. This caused problems when bootleg tapes of rock concerts would appear, since there was no cause of action under the Copyright Act (there was often protection under certain state statutes and common law, however). This meant that the availability of copyright infringement actions against bootleggers depended on whether the performers bothered to record the concert.

In December, 1994, Congress changed the law of unrecorded music performances when it passed The Uruguay Round Agreements Act. This act included a new provision, which prohibited the recording of live musical performances (that is, bootleg copies) even when there was no other "fixation" of the work. This provision includes separate prohibitions against the distribution and transmission of bootleg copies. In fact, the prohibition against transmission does not even require that a physical copy of the performance ever be made. While this act appears to create an exception to the fixation requirement for copyright, it is probably best understood as an independent right that is similar to copyright, but is not copyright.

Titles, names, short phrases, slogans:

Titles, names, short phrases, and slogans are not protected by copyright law. Similarly, it is clear that copyright law does not protect simple product lettering or coloring, or the mere listing of product ingredients or contents. The exclusion of these types of materials is not an exception to copyright law, but merely an application of the requirements for copyright protection. To be protected by copyright, a work must contain at least a minimum amount of authorship in the form of original expression. Names, titles, and other short phrases are simply too minimal to meet these requirements. This is why you will often see books and movies sharing the same title.

Of course, brand names, slogans and phrases which are used in connection with a product or service may be protectable under trademark law (see the BitLaw discussion on trademarks for more information). In fact, a series of books all under the same title may even create trademark protection for that title.

Ideas:

Ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection. As stated in the Copyright Act:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

This specific exclusion helps maintain the distinction between copyright protection and patent law. Ideas and inventions are the subject matter for patents, while the expression of ideas is governed by copyright law. If copyright were extended to protect ideas, principles and devices, then it would be possible to circumvent the rigorous prerequisites of patent law and secure protection for an invention merely by describing the invention in a copyrightable work.

An example is the best way to explain this idea/expression distinction. Suppose that an inventor discovers a process for cold fusion--an invention that would revolutionize society as we know it. If the inventor were to write down on paper a description of the process, that description would be protected against copyright infringement from the moment the work is fixed. If she were to publish her paper, no one would be able to make additional copies of the paper without her permission. However, anyone reading her paper could implement her process without fear of copyright infringement, since the process itself--the idea--is not protected under copyright law. In fact, it would even be allowable for someone to write a competing paper describing her invention, as long as the competing paper described the invention in its own words and did not take any "expression" from the original paper. However, only the inventor could apply for patent protection for her process. After applying for the patent, and going through a rigorous examination of the patentability of her patent, the U.S. Patent and Trademark Office might grant her a patent. At that point, she could prevent all others from using her idea. (For more discussion on patent protection, see the BitLaw discussion on patents).

One consequence of the idea/expression dichotomy is that there is no copyright protection in basic facts. A fact, such as George Washington's birthday or the Pope's address and phone number, is considered synonymous with an idea. It makes no difference how much effort went into discovering a particular fact. Even if it took two years of research to discover a fact, the fact is still not protectable under copyright laws. It is possible that a compilation of facts is protectable as a compilation, as long as the compilation required a minimum degree of originality (see the BitLaw discussion of compilation copyrights for more information).

A second, less expected result of the idea/expression dichotomy is the inability to obtain copyright protection for blank forms. Although graphical or literary elements that might be found on a form (such as a photograph or a detailed explanation of a term) would be subject to copyright protection, there is no copyright in the blank form itself. The blank form is considered to be a type of idea, a conclusion which stems from an old Supreme Court decision.

Useful articles:

Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Unfortunately, this test is inherently ambiguous when deciding the scope of copyright protection for certain useful articles.

Some distinctions are clear. For instance, a painting on the side of a truck is protectable under copyright law even though the truck is a useful article. The painting is clearly separable from the utilitarian aspects of the truck. The overall shape of the truck, on the other hand, would not be copyrightable since the shape is an essential part of the truck's utility. Another commonly considered example is that of clothing. The print found on the fabric of a skirt or jacket is copyrightable, since it exists separately from the utilitarian nature of the clothing. However, there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian. This is true even of fanciful costumes; no copyright protection is granted to the costume as a whole.

One of the primary purposes for prohibiting copyright protection in useful articles is to prevent the granting of patent-like protection through the copyright laws. If a useful article was protected under the copyright law, the protection against copying would be quite similar to patent protection. Since copyrights are so much easier to obtain than patents, there would be no way of limiting this patent-like monopoly to inventions that are truly novel and non-obvious. (For more discussion on patent protection, see the BitLaw discussion on patents).

Another interesting copyright concern is the extent of copyright protection in pictoral or sculptural works that portray a useful article. Take, for example, a painting of a futuristic looking automobile. Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting.