Five Creations That You Cannot Copyright (but might Trademark or Otherwise Protect)

Copyrights are relatively easy and inexpensive to secure but can be difficult to defend. But not all content creations or designs are covered by them.

Copyright protection covers original works of authorship that are fixed in a ‘tangible’ form and that can be copied. It may include a description, explanation, or illustration.

A great idea that someone describes to a friend cannot be protected by copyright, but if the teller writes that great idea down, the words can be protected. The content needs to be ‘codified.’

But not everything that seems like it should covered by copyright is. Creative works or content that escape copyright protection include:

Ideas, Methods, or Systems

Ideas, methods, and systems are not covered by copyright protection. According to the U.S. Copyright Office this covers many areas of creation, including:

  • Making, or building things
  • Scientific or technical methods or discoveries;
  • Business operations or procedures
  • Mathematical principles
  • Formulas, algorithms
  • Any other concept, process, or method of operation

Commonly Known Information

This category, reports Legalzoom, includes items that are considered common property and with no known authorship. This includes phrases such as “The sky is blue,” which have no known authorship associated with them.

Other examples include:

  • Standard calendars
  • Height and weight charts
  • Telephone directories
  • Tape measures and rulers
  • Lists or tables taken from public documents

Choreographic Works

A choreographic work, whether original or not, is not subject to copyright protection unless it has been videotaped or otherwise notated.

The same applies to speeches that have not been transcribed before or after they are given, as well as any other types of performances. (The recording of a concert, for example, can copyrighted by the performers or their representative, such as a publisher.)

Names, Titles, Short Phrases, or Expressions

That catchy slogan you came up with for your business? It is not copyrightable. The good news is that while not protected by copyright, if it pertains to your business (for example, goods and services), it can be protected with a trademark.

Also exempt from copyright:

  • Names
  • Titles
  • Short phrases or expressions
  • Product descriptions
  • Pseudonyms
  • Titles of works
  • Business names

Recipes also fall under this category. Specifically the listing of ingredients (even if it’s your own recipe ingredients) is not protected by copyright.

This applies to formulas, compounds, and prescriptions as well.

There are exceptions however, such as when recipes are compiled in a cookbook. Or if the recipe is accompanied by “substantial literary expression,” or a specific combination of recipes, there may be a basis for copyright protection.

Fashion

Contrary to what some people might think, fashion (e.g., a shirt, dress, or other article of clothing) is not protected by copyright law.

Despite the fact that copyright law protects such things as architectural design works (Circular 41) or works of the visual arts (Circular 40), fashion is all about clothing and accessories, which under copyright law are considered “useful articles.”

It is possible however, to copyright a specific fabric pattern (Burberry plaids for example), but not the actual dress.

Possible Copyright Alternatives

While many designs can’t be copyrighted, they can (sometimes) be patented. Apple infamously sued Samsung in a smartphone design case. Titles and names, for example, can sometimes be trademarked (as in a movie title or restaurant).

Steps leading up to an algorithm can sometimes be patented as can computer software. Defending patents is very challenging, especially in the area of software, copyrights somewhat less so (exact copies are rare), depending on what is at stake and the parties involved.

Trademarks are probably the most readily defended of IP rights — assuming the mark is appropriately held and the owner has the time and capital to defend it. Achieving ‘cease and desist’ is often less about less specific cash reward than preserving reputational value and preventing brand dilution.

Trade secrets, like the formula for Coca-Cola, sometimes apply to recipes and formulae, but they are difficult to maintain and defend.

U.S. vs. Europe

A fashion designer may not be able to copyright a dress in the U.S. but in Europe it is another matter. In the European Union, fashion products—including traditional apparel categories, accessories, and footwear—may be protected under national and European Union design laws and national copyright laws. (U.S. architectural designs, by the way, ARE copyrightable.)

The Net-Net

Creations are not covered under copyright require creativity to protect and defend.

 

Image source: TEDJohannaBlakely; digitalsynopsis.com

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