What Copyright Doesn’t Protect

I’ve talked a bit about the fact that copyright doesn’t protect “building blocks” such as single words, but I’d like to dig into the question of what copyright does and doesn’t protect a bit more. So let’s take a closer look at a couple of categories of things that copyright doesn’t protect.

Words and Short Phrases

Words and short phrases can’t be copyrighted. The US Copyright Office has stated that they do not contain sufficient authorship, even if they’re clever or unique. Another factor here is that these are generally building blocks of expression and granting them copyright protection has the potential to prevent new and valuable works of authorship. Think about it: copyright happens automatically when a work is created, if people got copyright whenever they created a clever new phrase, then anyone who repeated that phrase would technically be violating copyright. All the time. Up until 70 years after the original creator of the phrase died.

In the same vein, names, slogans, and titles cannot be copyrighted. Again, these don’t contain sufficient creative authorship to qualify for protection. That said, these things can, and are often, protected under trademark law, so “you can’t copyright a name” doesn’t mean “I can use this name however you want and you can’t stop me!” Think of it this way: you can’t copyright an identifier, but you can trademark it, because while we don’t want everyone ever to be prevented from using a particular phrase, we DO want consumers to be able to differentiate between competing products.

Ideas

Copyright doesn’t protect ideas. What copyright does protect is the fixed expression of an idea. Note two words there: “fixed” and “expression.” You don’t get copyright in something that’s just in your head, you must “express” it. But even if you do express it, you only get protection (and only protection of your expression of the idea, not the idea itself), if that expression is somehow “fixed” such as by recording it, writing it, drawing it, etc.

Let’s say I have a conversation with a friend about my super cool idea for a plot I’m planning to run in my ongoing Dungeons & Dragons campaign. Unless that conversation is recorded, nothing in it is protected, and my friend is free to use my exact idea in their own campaign. If, however, I send my friend a write up of my cool plot idea and they then turn around and copy my writeup to release an Adventure on https://www.dmsguild.com/, then I WOULD have copyright in that write up, and if they copied the write up I sent them in whole or in part, that would be a violation of my copyright.

Systems, Processes, and Simple Organization of Facts

As you can probably tell from the items above, there is at least a minimum bar for authorship that, if it isn’t met, means copyright is unavailable. Another group of things that generally fall below this bar are systems, processes, and basic organization of facts. Think the simple, unembellished, steps in a recipe, or the phone book (do people still use phone books any more?): these things aren’t protected by copyright. You might be able to protect some expression that goes ALONG with the uncopyrightable material, however. For example, those long stories that people often post along with recipes online? Those are generally subject to copyright, as would any photos.

Similarly, as a general rule (leaving aside some weird wrinkles, such as issues involving software and computer code that are beyond the scope of this blog), if something would be potentially eligible for patent protection, there’s a high probability that it isn’t also something you could copyright. I’m not saying there’s NEVER overlap, but most things are going to have one or the other available, if anything, and not both.

Useful Articles…Mostly

One fun fact: fashion is generally not protected by copyright because clothes are considered useful articles. In most cases, a “useful article” can’t be protected (there are, amusingly, exceptions for certain things such as boat hulls). This probably most often comes up in fashion, which is why I mention it here.

Now, SOME parts may be protected. The Supreme Court has held, in Star Athletica v. Varsity Brands, a case about cheerleading uniforms, that some design features incorporated into a useful articles may be protected if they meet certain criteria. Specifically, the design element must be able to be “identified separately” from the functional aspects and would otherwise qualify for protection if it were separated from the work. So, if you can look at part of an article of clothing and imagine it, say, as a picture on a wall, or an interesting sculpture? That part may be copyrightable. But things like the cut or color would still be unprotected.

Ultimately, if you’re looking at something useful and asking yourself if it might be protected by copyright, you probably need to ask yourself whether some part of it could be taken away, and displayed purely as art, and then qualify. The print on a t-shirt? There’s a good chance. The super interesting drape of a shirt collar? That’s a bit harder to guess, as it would depend on specific facts.

Conclusion

Ultimately, when considering whether something is protected by copyright (or can be protected), you need to look at whether it is functional or not, and whether it has sufficient authorship. That isn’t to say there might not be some more complex cases, but that’s the best starting point. Just know, if someone says “so-and-so copyrighted the word ‘Blue’” that no, they didn’t. They may have a TRADEMARK in that word for a particular use…but those rights are different from copyright, and treating them like they’re the same thing can cause lots of confusion.