Okay, so we’ve seen that pretty much any type of work may be protected by copyright in the US, provided that it’s original (not copied) and is minimally creative. The creativity bar isn’t high — it has nothing to do with artistic merit. Now let’s take a look at the things no one may copyright, ever. Believe it or not, there are some. (Actually, it’s a pretty big list.)
While the safe course is to assume that every creative work you encounter is protected by copyright ... you should also know what types of works, and what parts of otherwise protected works, are not copyrightable. There are elements, even in copyrighted works, that are free for all to use.
And with that, here’s a list of what’s not eligible for United States copyright:
Ideas are not eligible for copyright protection, but particular expressions of ideas are. Suppose, for example, that you published a book explaining a new system of beekeeping. The copyright in the book would prevent others from copying the particular text and illustrations describing your ideas about the system. But it wouldn’t give you the right to prevent others from adopting the ideas for commercial purposes or from developing the method described in the book. What you describe can’t be copyrighted, the way you describe it can.
A fact or event, as distinguished from the way it’s described in a particular work, is not copyrightable. Think about it. If the first person to write about a fact was given a monopoly over it, knowledge would be pretty slow to spread, right? So ... the facts in history or science books, and facts in the news are not copyrightable. For example, if I were to write a history of Hurricane Katrina, the facts that I reported would not be copyrightable. My particular expression of those facts would be protected, but not the facts themselves.
Individual words and short phrases such as names, titles, and slogans are not copyrightable. That means no copyright for things like names of products or services, business names, names of organizations or groups (including band names), names of individuals, titles of works, catchphrases, slogans, and short advertising expressions.
But (you knew there was a but, right?) ... some highly creative and literary phrases have been held to be copyrightable. For example, a court held that Ashleigh Brilliant’s phrase I may not be totally perfect, but parts of me are excellent was copyrightable (defendant had copied that phrase for use on t-shirts). By the way, you can see Brilliant’s work here.
Many blank forms and similar works designed to record rather than convey information cannot be protected by copyright. (For example, time cards, graph paper, account books, bank checks, scorecards, address books, report forms, order forms, diaries, etc.) To be protected by copyright, a work must contain at least a certain minimum amount of original expression ... and garden-variety blank forms don’t have enough.
Because copyright does not extend to names, titles, and short phrases or clauses, it doesn’t protect things such as column headings or simple checklists (for example, a travel diary with headings for "cities" "hotels," and "restaurants"). But if a form is creative enough, it will be protected by copyright.
For example, a baseball pitching statistics form was held to be copyrightable because the author selected nine stats out of the many that were available to use. Basically, it was worthy of copyright as a compilation. See Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991).
The mere listing of ingredients or contents in recipes or formulas is not copyrightable. (They’re individual words and short phrases, and, as such, aren’t copyrightable.) Recipe ingredient lists are not copyrightable, but explanatory notes and directions are. Any photos, illustrations, or commentary (the history of a certain dish, say) accompanying a recipe would be copyrightable, too. Also note that a recipe compilation, as in a cookbook, could be copyrighted.
Familiar symbols or designs, and mere variations of typographic ornamentation, lettering, or coloring are not copyrightable. Typeface is not copyrightable, and neither is book design.
The Copyright Office reconsidered the issue of copyright and book design in the 1980s ... and decided not to change its longstanding practice of not registering claims in book design. The Office stated that “the arrangement, spacing, or juxtaposition of text matter which is involved in book design falls within the realm of uncopyrightable ideas or concepts.” See 46 Federal Register 30651 (1981).
As for symbols and designs, standard ornamentation such as chevron stripes, a fleur-de-lys, or a cross are not copyrightable. Neither are common geometric figures or shapes such as a hexagon, ellipse, circle, triangle, etc., or standard symbols such as an arrow or five-pointed star. Not only that ... color schemes can’t be copyrighted. (For example, a blue and green color scheme on a web site. Nope, not copyrightable.) But ... any of these elements could be protected by trademark law.
Works consisting entirely of information that is common property and containing no original authorship are not eligible for copyright — for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources. Neither are diatonic and chromatic scales, and standard chord charts. But material that’s been added to common property type information, such as instructional text, could be copyrighted.
One of the requirements of copyright is that a work must be written down or recorded in some form. If not, no copyright. For example, choreographic works that have not been written down or recorded, or improvisational speeches or performances that have not been written or recorded are not copyrighted.
Another example would be playing music that hasn’t (yet) been written down or recorded. Let’s say you’re composing a song, and you’re working it out at the piano. The sounds aren’t copyrighted because they’re not (yet) fixed. Write it down, though, and the music is copyrighted.
Judicial opinions, administrative rulings, legislative acts or ordinances, and similar official legal documents are not copyrightable for reasons of public policy. (We’re all bound by the law, so the law must be free for publication to all.) This policy applies to such works whether they are federal, state, or local.
But be aware that some state and local governments do assert copyright in their laws. (For example, Minnesota, Maine, and Oregon.) It’s far from clear that those claims of copyright are legitimate, though. There is a long line of judicial decisions supporting the notion that the law, in whatever form, is not copyrightable ... starting with Wheaton v. Peters in 1834 and continuing through Veeck v. Southern Building Code Congress International, Inc. in 2002. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002). (You can read the Wheaton case here and the Veeck case here, if you’d like.)
Once a law is enacted, the wording of that law becomes a fact (and facts aren’t copyrightable). As the court in Veeck put it:
An individual wishing to publish the text of a law cannot develop his own, unique version and still publish an authoritative copy.
Basically, the idea of the law has merged with its expression — the wording of a specific law can’t be expressed any other way. (Courts refer to this as the merger doctrine.)
Here’s something to be careful of, though: while the texts of legal opinions are not copyrightable, summaries, notes, and other editorial enhancements (including the code for online formatting) are protected by copyright. Also: Be careful with digital copies! License agreements for legal texts published online or on CD-ROM may include (will almost certainly include) use restrictions. You might not get sued for copyright infringement, but for breach of contract.
Standard configurations of spaces, and individual standard features, such as windows, doors, and other common building components, are not copyrightable. Neither are common architecture moldings, or the volutes used to decorate the capitals of Ionic and Corinthian columns. Also not copyrightable are functional elements whose design or placement is dictated by utilitarian concerns.
To be an original work of authorship, the work must not be a mere computation based on a concept or formula, or be the mere extrapolation or application of an idea or system, which would always produce substantially the same result whenever done correctly by anyone. For example, the computation of interest based upon a particular rate wouldn’t be copyrightable. Neither would the transposition of music from one key to another (it’s a mechanical act, not a creative one).
Works in the public domain include those whose once valid US copyright has expired and works otherwise dedicated to the public either voluntarily or by operation of law. Also considered part of the public domain are edicts of government, which are uncopyrightable for reasons of public policy (see above).
Once a work is in the public domain, it remains in the public domain and can’t be protected by copyright. Even when it’s republished. If a publisher has added new material, such as an introduction or notes, or illustrations, the publisher would have a copyrightable derivative work ... but the copyright would protect the new material only. The original work stays in the public domain, and free for all to use.
That’s how it’s supposed to work, anyway. Sadly, though, there are many publishers out there who slap all-encompassing copyright notices on works that include reprints of public domain works. This is flagrant copyright misuse, and it should be stopped. So when you see it, publicize it! Blog about it or something.
Note: Regarding public domain dedications ... be careful where an author sends mixed messages! For example, statements like “this work is public domain but you may not ....” If a work is public domain, there are no restrictions on it, period. So if you come across a mixed message, ask for clarification. Never assume. (You know what they say about assuming.)
For more info on this go here. Also, be really, really skeptical when you see works touted as "copyright free." It’s very common that when someone uses the phrase "copyright free" (with regard to clipart or photos, for example), what they really mean is "royalty free." For more detail on this, see here.
To be entitled to copyright protection, a work must be the product of human authorship. The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable. Works produced by mechanical processes or random selection, without any contribution by a human author, can’t be copyrighted. So, a linoleum floor covering featuring a mechanically produced multicolored pebble design in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
A useful article is an item whose inherent function is utilitarian. Examples of useful articles include automobiles, boats, household appliances, furniture, work tools, clothing, dinnerware, and lighting fixtures. Copyright doesn’t protect the mechanical or utilitarian aspects of useful articles (for example, the serrated edge of a knife), but ...
Copyright may protect pictorial, graphic, or sculptural features that can be identified separately from the utilitarian aspects of the useful article. (A useful article may have both copyrightable and uncopyrightable features, then.) So ... while the serrated edge of a knife wouldn’t be protected by copyright, a floral relief design on the knife’s handle could be. Likewise, a carving on the back of a chair or a pictorial design engraved on a glass vase could be protected by copyright, but the design of the chair or the vase itself could not.
Okay then ... to be protected by copyright, those pictorial, graphic, or sculptural features must be physically or conceptually separable from the useful article. Say what?
Phyically separable means just that — you can remove the feature and it can stand on its own. For example, a sculptured lamp base in the form of a Balinese dancer could be removed from the lamp and stand on its own as a sculpture.
Conceptually separable means you can imagine the feature being separated from the useful article without destroying the article’s shape, even though you can’t physically remove it. For example (getting back to the examples mentioned above), the carving on the chair back or the picture engraved on the vase. You could imagine them being removed, and the shape of neither chair nor vase would be destroyed. So those decorative features would be protected by copyright.
Works prepared by officers or employees of the US government as part of their official duties are not copyrightable. This is a huge category of copyright-free works in the United States.
But you must be careful here. Sometimes the US government uses independent contractors to create works for it. These works may be under copyright (unless they’re works made for hire). Also, some government related entities look like federal agencies, but aren’t — and they do claim copyright in their works. Copying their stuff without permission is infringement.
In fact, I think a bit more guidance for using US government works might help ...