Principal Attorney
Copyright law covers a broad range of expressive works. However, some materials do not qualify for copyright protection under U.S. or state law.
Ideas, Concepts, and Facts
Copyright law protects an expressive work fixed into a tangible medium, such as through writing or recording a work (including in a digital medium). That expressive work must also contain a specific creative expression. Copyright law does not protect a general concept or idea. For example, a person cannot obtain a copyright for the basic premise of a story, such as a warrior or unexpected hero on a journey to defeat a great evil or obtain a treasure. However, a story based around those narrative beats, including developed characters and a description of what happens to them, constitutes a copyrightable work.
Furthermore, parties cannot copyright facts, historical information, or other data, such as dates of historical events or scientific principles. However, a party can incorporate facts into a copyrightable work, such as an encyclopedia or textbook.
Names, Titles, and Short Phrases
A work must have some artistic effort beyond a name, title, or short phrase. For example, while a party can copyright an extremely brief poem, they cannot copyright a slogan or brand name. Instead, brand names or short slogans fall under trademark protection, as parties typically use such names and slogans to identify the source of a product or service available for sale rather than as an artistic expression. However, advertising “jingles” can fall under copyright protection, although a specific advertising slogan used in a jingle may have a trademark.
Government Works
Works produced by a federal, state, or local government in the U.S., such as government reports, statutes and regulations, and court opinions, do not qualify for copyright protection. Courts have ruled that the government cannot seek copyright protection for material produced using public resources and prevent the public from copying and distributing such materials. Furthermore, barring the government from copyright protection ensures people can access the laws and regulations the government expects them to follow.
Public Domain Content
Under copyright law, works with a copyright eventually pass into the “public domain” once their copyright expires. Published works not qualifying for copyright registration also enter the public domain upon publication. Works created prior to January 1, 1978, are protected for 95 years. For works created on or after January 1, 1978, beginning in 2049, their copyright lasts for the author’s life plus an additional 70 years after their death. Copyrights for works made for hire (created by an employee or contractor for an employer) last for 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. Works can also lose copyright protection when the holder fails to maintain the registration. Once a work passes into the public domain, it loses copyright protection.
Functional Content
Functional or practical works may not qualify for copyright protection. For example, a person cannot copyright a dish or baked goods recipe. However, some functional content may become part of a copyrighted work, such as when a person compiles recipes and adds them to introductory or explanatory text in a cookbook.
Works Not Fixed in a Tangible Medium
Finally, copyright protection does not extend to creative work that is not yet fixed in a tangible medium. For example, a person may have a detailed fictional story complete with dialogue in their head. However, until that person writes the story down, they have no copyright protection, and anyone can publish a story using nearly identical details.
Individuals cannot place some expressive works, such as a live or improvised performance, into a tangible medium eligible for a copyright. However, a recording of such a performance can have a copyright.
Contact a Copyright Lawyer Today
If you have questions about what you can or cannot copyright, talk to an experienced Texas intellectual property attorney from Sul Lee Law Firm PLLC. Contact us today for an initial consultation with a copyright lawyer to discuss your rights and options.