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Things You Cannot Copyright

by | Feb 21, 2019 | Copyrights, Intellectual Property

Advancements in internet and new media technology have given rise to information and creative materials spreading faster and wider than ever before in history. In turn, the sheer amount of copyright-protected material has increased exponentially.

Not surprisingly, litigation pertaining to copyright violations has exploded over the last decade as well. However, there are still a few areas to which copyright protection does not extend.  

Before contacting the U.S. Copyright Office, there are two primary questions you must ask yourself:

  1. Does your work take a tangible form?
  2. Is it original enough?

Is It Tangible?

Works that have not been fixed in a tangible form are not eligible for copyright protection. In other words, the material must be written or recorded in some way to be protected.

Ideas, procedures, methods, systems, processes, concepts, principles, and discoveries themselves are not tangible and cannot be copyrighted. However, even if your work is typically non-tangible, there may be a way to transfer it into physical form.

Choreographers and improv performers, for instance, may record their performances so that the physical (tangible) recording can be considered definable and fixed, and therefore copyright-worthy.

Is It Original?

If your submitted material does not have enough originality – or creativity – it may not merit protection under U.S. copyright law. Some examples I have seen rejected:

  • jewelry in the shape of a specific island
  • the decorative raised pattern in a floor liner
  • a cardboard container

Works that are entirely made up of common information (facts) and/or without original authorship do not qualify for a copyright. Generally, this includes:

  • Titles
  • Names
  • Short phrases and slogans
  • Familiar symbols or designs
  • Variations of typographic ornamentation, lettering, or coloring
  • Listings of ingredients or contents

There are a few grey areas, though, and an experienced intellectual property attorney can help you navigate them. Your material may actually be considered another type of intellectual property (qualifying for trademark or patent protection), or there may be specific updates you can make to the work in order to qualify for copyright protection.

The only other question you may need to ask is whether the work you’d like to copyright is the property of the U.S. federal government.

The federal government is barred from copyright protection for a couple of reasons. One, our federal tax dollars are spent on creating those works, so they are required to be given back to the populace. And two, it prevents first amendment issues like the government stifling public criticism of its work and/or practices.

So, unless protected by secrecy laws, anything created through government work is typically placed directly into public domain.

Still not sure about your specific situation? Check with a knowledgeable intellectual property attorney.


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