Works Not Protected By Copyright

Some works are not in the categories protected by copyright law. Others may have been subject to copyright protection in the past, but copyright was not perfected under prior versions of the law or the copyright protection expired.

Copyright protection applies to works that satisfy all of the following criteria. The work must:

• Be in one of the following categories that receive copyright protection under federal statute:

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
8. architectural works

The category of "literary works" includes computer programs, catalogs, and other works that have nothing to with literature. It covers "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia . . . "

• Be an "original work of authorship." This means there must be some small degree of originality involved. For example, a list of facts is not likely to be protected by copyright unless there is some original arrangement to the list. Thus, a database of facts, absent original selection and arrangement, will usually be excluded from copyright protection. The U.S. Supreme Court held that an alphabetical listing of persons in the white pages of a phone book is not protected by copyright.

• Be "fixed in a tangible medium of expression." Works must be preserved in some way, such as written on paper, engraved in stone, recorded on electromagnetic disk or tape, etched by laser in a compact disk, or even temporarily stored in the random access memory of a computer. A rainbow in the sky and, more to the point, a speech that is not written or recorded, has no copyright protection.

• Not be an "idea, procedure, process, system, method of operation, concept, principle, or discover, regardless of the form in which it is described, explained, illustrated, or embodied" in a copyrighted work. Copyright applies to the expression of ideas, not the ideas themselves. Thus, the general plot for a play may be used in many variations without infringing copyright, but the written words of the same play are likely to be protected by copyright. (Note, however, that one may not create works derived from a copyrighted work, such as translations and adaptations, without respecting the copyright of the original.) A process, machine, etc., may be protected by patent law as opposed to copyright law.

• Not be a work produced by a U.S. government employee in the scope of employment. Such works are in the public domain.

• Not be a short phrase or title. Copyright requires more length, although a distinctive phrase or mark could fall under trademark protection.

• Not be a work the author has expressly made available for unrestricted copyright, distribution, etc. Such works have been effectively dedicated to the public domain.

• Not be a work whose copyright has expired. Copyright has a limited term by law. Typically, it is 70 years plus the life of the author, but there are numerous other terms. See When Works Pass Into the Public Domain for a table showing when copyright expires for various types of works.

If the work does not satisfy all of the preceding criteria, then copyright permission is not needed to use the work.