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What Cannot be Copyrighted?

December 28, 2021
Field of copyright symbols and copyright text

Here on the Cardozo Online Blog, we have delved into the specifics of copyright as one of the four forms of intellectual property protection, how large and powerful companies have influenced copyright laws over the years, and what can be copyrighted. For a quick refresher, copyright protection covers original works of authorship that include artistic works, literary works, films, music, choreography, computer programs, architecture, advertisements, maps, and technical drawings.1

With such an extensive list of works that are covered under copyright laws, what cannot be copyrighted?

The Works that Cannot be Covered by Copyright Laws

Works that cannot be copyrighted tend to be more amorphous in nature, common knowledge or commonly used, or do not meet the low threshold to be considered original works. There are several categories of works that cannot be copyrighted.

Commonly Held Knowledge and Facts

The sky is blue. The sun rises in the east and sets in the west. The world is round. This is all commonly held knowledge (although flat earthers might argue otherwise) and using it in a work of your own does not require you to seek permission.

Similar to commonly held knowledge, facts are also not able to be copyrighted. Statistics like sports scores or the number of people attending an event fall into this category. You can also include telephone numbers, dates of birth, measures, standard height and weight charts, etc. Recipes also are included here. These things cannot be copyrighted because they have no known authorship.2 And this type of information also does not pass the threshold to be considered original.

There are some unique instances where, if the statistics are laid out in an original way, they may be able to be copyrighted. However, the copyright would be for the design and not for the facts or information included.3

Works Made by the U.S. Government

Copyright laws do not apply to works created by the U.S. government. These federal works include:3

  • Judicial decisions
  • Statutes
  • Speeches made by officials given while they are employed by the federal government
  • Government press releases
  • Government reports (such as census reports)

The key here is that these works are created by the federal government. This is because of the U.S. Copyright Act, which states that, “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”4

Works from state and local governments can be copyrighted, with the exception of state laws.5

Forms of Expression that are Not Fixed or Tangible

By definition, copyright protection applies to original works and to fixed works. This means that the work is captured in a permanent medium so that it can be viewed, reproduced, and/or communicated for a more lengthy period of time.6 Writings, recordings, and artwork all fall under this fixed category.

Works that are not fixed, such as an impromptu speech that is not recorded or written down, can be used without permission. However, citations are always encouraged to prevent claims of plagiarism.3

Ideas, Concepts, Principles, Discoveries, Systems, or Methods

Similar to what we discussed in the facts and commonly held knowledge category, the form of the work using ideas, concepts, and principles is what can be copyrighted, but not the ideas themselves.3 We see this in cases where authors accuse each other of stealing story ideas. If the idea has not been expressed in a novel or written form, there is no case of copyright infringement.

This concept also applies to systems or methods that can be applied to business, science, and mathematics uses. For example, mathematical principles, algorithms, or formulas cannot be copyrighted.5

Words, Titles, Phrases, or Familiar symbols

When someone goes on stage for a performance, we will often tell them to “break a leg.” While the play or song they may be performing can be copyrighted, the common phrase cannot be. This is an example of the slogans and phrases that cannot be protected by copyright.

Titles, pseudonyms, descriptions, prescriptions, familiar symbols and designs all apply here. However, if something produced in these areas meets the criteria to be sufficiently creative, copyright protections may apply.

Slogans, names, and symbols can be trademarked, however.3

Public Domain Works

There is a reason that large companies like Disney have a vested interest in copyright laws, and have been able to drive changes to copyright laws. Once a work falls outside of the timeframe of its copyright protection, it can be used by the public in new works without permission.

It can be challenging, however, to figure out if a work falls into public domain. There are some general guidelines to help determine if a work is up for grabs3:

  • Any work published before 1923 is in the public domain
  • Any work published without a copyright notice between 1923 and 1977 is in the public domain
  • Works created after 1989 generally are not in the public domain unless the work has been dedicated to the public domain by the creator

However, a public domain work may have been used in a new format that allows for a new owner to claim copyright protection. This, among other reasons, is why legal professionals choose to specialize in intellectual property laws to help cut through the complexity.

Build Your Expertise in Copyright Law at Cardozo

With an online LL.M. in Intellectual Property from Cardozo School of Law, you will build a deep knowledge base of how copyright laws are being interpreted, as well as the application of traditional copyright principles to new technologies and media of expression. Explore the range of copyrightable subject matter, issues of ownership and transferability, issues pertaining to the reproduction, distribution, and performance of copyrighted works and the creation of derivative works, and issues concerning fair use and parody.

This knowledge will come from courses taught by faculty who are studying the law and actively making an impact in how law is being practiced today. Get to know our faculty members and learn more about the coursework that will shape your experience and the future of your career.

Sources
  1. Retrieved December 13, 2021, from wipo.int/copyright/en/
  2. Retrieved December 14, 2021, from legalzoom.com/articles/5-things-you-cant-copyright
  3. Retrieved December 14, 2021, from dmlp.org/legal-guide/works-not-covered-copyright
  4. Retrieved December 15, 2021, from.copyrightlaws.com/copyright-laws-in-u-s-government-works/
  5. Retrieved December 14, 2021, from kashishipr.com/blog/things-that-cannot-be-copyrighted/
  6. Retrieved December 15, 2021, from copyright.gov/what-is-copyright/