What works cannot be copyright protected?

Not all works can receive copyright protection. Title 17, the copyright title, specifically lists what can and can’t be considered copyrightable. Section 102 of the copyright code states:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works.

(b) 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.

From this section, there are two distinct requirements that if not satisified, the work cannot be copyrighted:

Originality Requirement

The first requirement for a work to be copyrighted is that it must be original. Works without enough “originality” (creativity) to merit copyright protection such as titles, names, short phrases and slogans, familiar symbols or designs, font design, ingredients or contents, facts, blank forms, etc. cannot be copyrighted. There is great tension here between granting incentive and financial reward when something is worthy, but not granting it to things so basic and commonly used that everyone would be forced to pay. Thus, the law is somewhat unclear in this area.

Another exception that has recently been added to this category is computer code. Because code is so repetitive at its base, single lines of code are not considered original. Instead, copyright protection for programs is granted for the overall verbiage and interface of the created program, while the function of the program is sent for patenting.

Tangible Form Requirement

The second requirement under the copyright code is that the work be fixed in a tangible form. Intangible works cannot be copyrighted simply because there is no way to verify the work.

Examples of intangible forms include: choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded. So, if you are planning an improvisational performance that you wish to protect, make arrangements for some form of recording to be done. The recording then becomes a defined fixed form under copyright code and is copyrightable.

Case Studies: Works Excluded From Copyright Protection

Case Study 1: Lack of Originality

Sarah wants to understand which works cannot be protected by copyright due to a lack of originality. Copyright protection is granted to original works of authorship fixed in a tangible medium of expression. However, works lacking sufficient originality, such as titles, names, short phrases and slogans, familiar symbols or designs, font designs, ingredients or contents, facts, and blank forms, cannot be copyrighted.

In some cases, computer code may be protected for the overall verbiage and interface of a program, while the function may be eligible for patent protection. Sarah learns that certain works are excluded from copyright protection if they lack the required level of originality. Understanding these limitations helps individuals determine what aspects of their creations may or may not be eligible for copyright protection.

Case Study 2: Intangible Works

David is interested in knowing which works need to be fixed in a tangible form to be eligible for copyright protection. Another requirement for copyright protection is that the work must be fixed in a tangible form. Intangible works, such as choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded, cannot be copyrighted.

To protect an improvisational performance, for example, arrangements must be made to record it, as the recording then becomes a defined fixed form eligible for copyright protection. David discovers that copyright protection applies to works fixed in a tangible form. This emphasizes the importance of recording or notating intangible works to meet the requirement for copyright protection.

Case Study 3: Government Works and Public Domain

Michael is curious about copyright protection for works created by the government. In the United States, works created by federal government employees as part of their official duties are not eligible for copyright protection. These works are considered to be in the public domain and can be freely used, reproduced, and distributed by the public.

However, state and local government works may still be eligible for copyright protection, depending on their respective laws. Michael learns that government works are generally excluded from copyright protection at the federal level, making them valuable resources for public use and dissemination of knowledge.