Some types of material are ineligible for copyright protection. Generally, these materials areeither protected by some other intellectual property, or have been considered inappropriatefor protection. The following unprotected works are discussed in greater detail below:
- unfixed works
- titles and short phrases
- ideas
- useful articles
Unfixed
Works that have not been fixed in a tangible form of expression are not protected under theCopyright Act, since fixation is one of the prerequisites for copyright protection (see theBitLaw discussion on obtaining copyright protection formore information). For example: choreographic works that have not been notated or recorded, orimprovisational speeches or performances that have not been written or recorded are bothineligible for copyright protection. For many years, unrecorded music concerts were alsounprotected by copyright law because they were not fixed. This caused problems when bootlegtapes of rock concerts would appear, since there was no cause of action under the CopyrightAct (there was often protection under certain state statutes and common law, however). Thismeant that the availability of copyright infringement actions against bootleggers depended onwhether the performers bothered to record the concert.
In December, 1994, Congress changed the law of unrecorded music performances when it passedThe Uruguay Round Agreements Act. This act included a new provision, which prohibited therecording of live musical performances (that is, bootleg copies) even when there was no other"fixation" of the work. This provision includes separate prohibitions against thedistribution and transmission of bootleg copies. In fact, the prohibition againsttransmission 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 isprobably best understood as an independent right that is similar to copyright, but is notcopyright.
Titles, names, short phrases, slogans
Titles, names, short phrases, and slogans are not protected by copyright law. Similarly, itis clear that copyright law does not protect simple product lettering or coloring, or the merelisting of product ingredients or contents. The exclusion of these types of materials is notan exception to copyright law, but merely an application of the requirements for copyrightprotection. To be protected by copyright, a work must contain at least a minimum amount ofauthorship in the form of original expression. Names, titles, and other short phrases aresimply too minimal to meet these requirements. This is why you will often see books and moviessharing the same title.
Of course, brand names, slogans and phrases which are used in connection with a product orservice may be protectable under trademark law (see the BitLaw discussion on trademarks for more information). In fact, a series of books all under thesame title may even create trademark protection for that title.
Ideas
Ideas, procedures, principles, discoveries, and devices are all specifically excluded fromcopyright 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, regardlessof the form in which it is described, explained, illustrated, or embodied in suchwork.
This specific exclusion helps maintain the distinction between copyright protection and patentlaw. Ideas and inventions are the subject matter for patents, while the expression of ideasis governed by copyright law. If copyright were extended to protect ideas, principles anddevices, then it would be possible to circumvent the rigorous prerequisites of patent law andsecure protection for an invention merely by describing the invention in a copyrightablework.
An example is the best way to explain this idea/expression distinction. Suppose that aninventor discovers a process for cold fusion--an invention that would revolutionize society aswe know it. If the inventor were to write down on paper a description of the process, thatdescription would be protected against copyright infringement from the moment the work isfixed. If she were to publish her paper, no one would be able to make additional copies ofthe paper without her permission. However, anyone reading her paper could implement herprocess without fear of copyright infringement, since the process itself--the idea--is notprotected under copyright law. In fact, it would even be allowable for someone to write acompeting paper describing her invention, as long as the competing paper described theinvention in its own words and did not take any "expression" from the originalpaper. However, only the inventor could apply for patent protection for her process. Afterapplying for the patent, and going through a rigorous examination of the patentability of herpatent, the U.S. Patent and Trademark Office might grant her a patent. At that point, shecould prevent all others from using her idea. (For more discussion on patent protection, seethe BitLaw discussion on patents).
One consequence of the idea/expression dichotomy is that there is no copyright protection inbasic facts. A fact, such as George Washington's birthday or the Pope's address and phonenumber, is considered synonymous with an idea. It makes no difference how much effort wentinto 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 degreeof originality (see the BitLaw discussion of compilationcopyrights for more information).
A second, less expected result of the idea/expression dichotomy is the inability to obtaincopyright protection for blank forms. Although graphical or literary elements that might befound on a form (such as a photograph or a detailed explanation of a term) would be subjectto copyright protection, there is no copyright in the blank form itself. The blank form isconsidered to be a type of idea, a conclusion which stems from an old Supreme Courtdecision.
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 protectionavailable to these items is for "features that can be identified separately from, and arecapable of existing independently of, the utilitarian aspects of the article." Unfortunately, this test is inherently ambiguous when deciding the scope of copyrightprotection for certain useful articles.
Some distinctions are clear. For instance, a painting on the side of a truck is protectableunder copyright law even though the truck is a useful article. The painting is clearlyseparable from the utilitarian aspects of the truck. The overall shape of the truck, on theother hand, would not be copyrightable since the shape is an essential part of the truck'sutility. Another commonly considered example is that of clothing. The print found on thefabric of a skirt or jacket is copyrightable, since it exists separately from the utilitariannature 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 trueeven 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 toprevent the granting of patent-like protection through the copyright laws. If a usefularticle was protected under the copyright law, the protection against copying would be quitesimilar 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 noveland 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 orsculptural works that portray a useful article. Take, for example, a painting of a futuristiclooking 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 theautomobile 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.
