Copyrightability – Copyright & Information Policy

Copyrights are easy to get — no registration or application required, not even a (c) notice (although those are helpful for other reasons). The copyright automatically happens as soon as a work is “fixed” in some medium — written down, recorded, or put in an electronic medium. However, although it’s dead easy (automatic!) to get a copyright, it only applies to works that are copyrightable.

What does that mean? In the United States, copyright applies to “original works of authorship fixed in any tangible medium of protection.” (17 USC 102(a)) It does not apply to “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” (17 USC 102(b))

These limitations are why, for instance, recipes can be freely copied — the core of a recipe is, at heart, a list of ingredients (which is all facts, not an “original work of authorship”) and a list of cooking steps (a “procedure”). But while the recipe ingredients and steps can be copied, the beautiful photographs or descriptive text that accompanies the recipe in a lovely cookbook are copyrightable “works of authorship”.

In any field, and especially in the academic world, it is important to understand what is and is not copyrightable. Below we describe the fundamental principles and applications of “copyrightability”.

“original work of authorship”

An original work of authorship means a few different things. First, the work must originate with the author — be “original”, an independent reation of the author. The author cannot copy it from some other work.

Key Point: Copies of public domain works are not copyrightable.

So, for instance, in the case of Bridgeman v. Corel, 36 F. Supp. 2d 191 (S.D.N.Y. 1999), a company made scans of public domain artworks. But the company could not claim a copyright on the scans, because the whole purpose of the scans was to copy the originals as closely as possible, “with absolute fidelity”; this kind of “slavish copying” did not qualify for copyright protection. (And, as the court had previously noted earlier in the case, even if the work were copyrighted, there could be no infringement, because the only thing that was copied was the public domain content.) The important principle from this case, affirmed in multiple cases in the US and around the world, is that copies of public domain works are not copyrightable.

Key Point: Facts (and collections of facts) are not copyrightable.

“Original work of authorship” also means that the work must “originate” with the author in the sense that the author must create the work, not merely collect or gather preexisting works. In an important case, Feist Publications v. Rural Telephone Service Co., the U.S. Supreme Court considered the case of a CD-ROM company (Feist) that copied a number of telephone books to assemble a collection. In a 9-0 decision, the Court held that the phone books were not copyrightable — they were simply factual information that the phone company had gathered. The hard work of gathering information alone does not create a copyright, because there must also be some spark of creativity. It doesn’t have to be much — a creative selection or arrangement could get a “thin copyright” — but there has to be something other than bare facts, with no particular selection criteria, arranged in a commonplace or logical order. Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991)

Key Point: Ideas are not copyrightable.

Closely related to the above principles is the long-standing doctrine called the “idea/expression dichotomy”. It is often expressed as “copyright protects the expression of ideas but does not protect the ideas themselves.”

One common example is the idea of star-crossed lovers from rival families, who meet cute, fall in love, then die tragically. The idea itself cannot be copyrighted, under the scènes à faire doctrine — a doctrine that protects popular scenes or plot elements from being copyrighted. (The phrase literally means, “scenes to be made”, meaning scenes that must be made.) Any particular implementation of that idea may be copyrighted — but the copyright only extends to the original creative expression, not to the underlying scene or convention. Cases such as Joshua Ets-Hokin v. Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000), Gates Rubber v. Bando Chemical Industries, 9 F.3d 823 (10th Cir. 1993), and Cain v. Universal Pictures, 47 F.Supp. 1013 (1942) have applied the scènes à faire doctrine in contexts ranging from photography, to software, to films. In each case, the conventions of a particular field were deemed to be uncopyrightable.

Similarly, the merger doctrine states that when there is only one or a few possible ways to express an idea, nobody can copyright the expression — giving someone a copyright on the expression would effectively be locking up the idea! In a 1967 case, Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967), the court found that contest rules were so factual and descriptive that they could not really be expressed any other way. Consequently, the contest rules were not copyrightable.

Key Point: Short phrases and titles are not copyrightable.

Related to the merger doctrine, the Copyright Office will not register “words and short phrases, such as names, titles, and slogans”. These include “catchwords or catchphrases” and “mottos, slogans, or other short expressions”, as well as “the title or subtitle of a work”.

People often confuse copyright and trademark, but they are distinct bodies of law. Slogans, names, and catchphrases are all the sorts of things that could possibly be trademarked — but they are not copyrightable.

Key Point: Forms and systems are not copyrightable.

In an early and important case, Baker v. Selden, the Supreme Court began delineating the difference between copyright and patent, by keeping organizational systems out of copyright. Baker v. Selden, 101 U.S. 99 (1879). Charles Selden had created a book of blank bookkeeping forms, which Baker copied in distributing a similar book. The forms themselves helped establish a system of bookkeeping — and copyright did not cover that system, or the blank form elements which described that system.

Key Point: Functional designs are not copyrightable (only nonfunctional elements).

In another important case, Mazer v. Stein, 347 U.S. 201 (1954), the US Supreme Court considered the field of industrial design, defining the idea/expression dichotomy, and again distinguishing between patentable and copyrightable works. In this case, the Court considered functional designs with aesthetic or creative elements attached; so long as the aesthetic or creative elements were separable from the functional, utilitarian (and noncopyrightable) elements, the creative elements could be copyrighted. More recently, the US Supreme Court considered this issue again in the context of cheerleading uniforms (Star Athletica v. Varsity Brands, 580 U.S. ___ (2017), holding that the “separable”, creative elements must be both intellectually distinct, and copyrightable in themselves.

Key Point: Typeface, layout, and design, are not generally copyrightable.

Typeface, and layout of pages, are other aspects of design that are not generally copyrightable. However, if you intend to use or to create a typeface or particular layout, it is worth investigating this issue more closely.

Fonts and typefaces can be registered in some circumstances, if there is “separable” ornamentation on the letters. Moreover, most typefaces are made available as computer fonts through licensing agreements, which may apply restrictions on certain uses.

And while the Copyright Office will not register a page layout generically (that would be an idea), a creative page layout as applied to particular content might be copyrightable.

“fixed in any tangible medium of expression”

The “fixation” requirement is often overlooked, but it has some important implications to consider. First, don’t be misled: “tangible medium” includes the quite intangible digital world. Fixing works in a slide deck or email is quite sufficient for the fixation requirement!

Second, the fixation requirement means that unfixed works — such as extemporaneous oral lectures — are not copyrightable. For a speech or lecture to be copyrighted, it has to be either written down in advance, or simultaneously recorded with authorization.

“original work of authorship”

“fixed in any tangible medium of expression”

Further reading and credits