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What Copyright Does and Does Not Protect
©2019, Melissa C. Marsh.
Written: 3/1/2001  
By: Melissa C. Marsh
www.yourlegalcorner.com


Difference Between Patent and Copyright

People often confuse patents and copyright. Patents protect ideas, while copyrights protects the author's expression of the idea.

What Does Copyright Protect?

Most people realize that copyright protects writings like books, poetry, and short stories. Most people also realize that copyright protects art like photos, paintings, sculptures, drawings, and architectural designs. But copyright also protects many other things like an advertising copy, advertising jingle, instruction manual, brochure, logo design, computer program, computer database, term paper, speech, pamphlet, home movie, and cartoon strip. In fact, even the most routine business letter and your diary is entitled to protection under our copyright statute. However, copyright doesn't protect every product of the imagination. In fact, any discussion of copyright protection must be based on an understanding of what copyright does not protect.

Expression versus Idea

Copyright protects only the particular expression of an idea, fact, method, process, principle, or discovery; it does not protect facts, the idea itself, or any underlying fact, discovery, process, method, system, procedure or principle. Huh? If you come up with a great idea and tell your friend, your friend is legally free to take that idea and make it a reality. Likewise if you draw a sketch of a new design for a gadget, and someone sees your sketch and remembers it, that person is also legally free to create his or her own gadget so long as it is not a copy of your sketch. It may be unfair or unethical for the person to steal your idea, but it is not illegal. One idea can lead to thousands of expressions of that same idea and our government decided a long time ago that it wanted to encourage creative progress, rather than limit it. As a consequence, the copyright statute does not protect facts, ideas, methods, discoveries, processes, etc...

Although copyright will not protect the basic facts or the idea itself, it does protect your particular expression of an idea. This means that your idea of printing advertisements on the sides of those big white trucks that block your view on the freeway can be copied by anyone, but your particular expression of your idea, e.g. your artwork for the advertisement and your advertising copy promoting the commercial service is protected by copyright.

Similarly, lets assume you come up with the idea of placing coupons on the back of grocery receipts. Copyright will not protect your system of giving your customers the coupon. Anyone can take that idea at any time, without your permission, including a competitor or the grocery store itself.

Unprotected Elements of a Copyrightable Work

Now it gets a little tricky. As we said before, a book, a poem, a short story each are copyrightable. But what about the title, plot, setting, or theme? These items which admittedly are products of the imagination are not afforded copyright protection because they are too close to being just a mere idea. Huh? Your wondering. Well, under the law the following items are deemed to lack the necessary expression of an idea, and are not protected by copyright:

  • Literary plot (boy gets girl, boy loses girl, boy gets girl back). While the basic plot may not be copyrightable, the authors selection and arrangement of the scenes may become copyright protected.


  • Basic themes (horror, love story)


  • Settings (time and place) and Situations


  • Generic "type" characters (crazy woman, mob guy, grumpy old man). Careful though because while unprotected to the extent they are "types", once a visual representation or additional detailed elements are added, the type character may then be afforded the status of a protected expression.


  • Words, Product and Company Names, Pseudonyms, Titles, Slogans, and Short Phrases are not protected under copyright, but may become afforded some protection under trademark law or the law of unfair competition.

  • Literary devices such as flashbacks, alliteration, and a story within a story are not protectable (these devises are all in the public domain).


  • Emblems (both religious and national), typefaces, numerals, and punctuation.


  • Jewelry designs that accurately mimic nature (e.g. pin in the form of a cat, lion, or bee).


  • Common dance steps and simple routines are not copyrightable as choreographic works.


  • Basic factual information, research data and historical facts are not copyrightable, but compilation of such information or data may be copyright protected.


  • Blank forms sometimes are and sometimes are not afforded copyright protection. The general rule appears to be that the more information the form conveys, the greater the possibility of getting copyright protection.


  • The utilitarian elements of an industrial design, as opposed to its decorative aspects, are not copyrightable.


So What is a Utilitarian Aspect of a Work?

The copyright statute specifically denies protection to "utilitarian elements of industrial design". Pictorial, graphical and sculptural works are protectable, but their forms- the "mechanical or utilitarian aspects" of such designs- are not protected under copyright. However, if such a form can meet the stringent standard of a utility patent, patent protection may be available.

For example, let assume you make a vase in a weird shape to hold some flowers and paint it with a colorful design, the design has nothing to do with the function of the vase, which is to hold flowers. Therefore, the design on the vase is protected by copyright.

Now, lets assume you create just a regular bud vase. Since the design is common and contains no elements that were not primarily functional (e.g. to hold just one flower), it would be unprotectable under the copyright statute. If, however, the plain bud vase was designed in a unique sculptural fashion, the sculptural design would be protectable because it is more decorative and less utilitarian, even though it still served the same purpose to hold just a single flower.

Functional works

Courts treat works with a functional aspect, such as recipes, contest rules, game rules, architectural plans and computer programs, somewhat differently from works that have no inherent functional aspects. Although eligible for copyright protection, less protection is afforded because the intended function of such a work dictates certain protocols be followed for the ordering and presentation of the information contained in such a work.

For example, copyright in recipes is very limited. Copyright does not protect any list of ingredients because such lists consist of information and have no protectable expression. A particular expression of recipe instructions may be protectable, at least from word-for-word copying. However, it would be protectable only to the extent that the explanation of the steps in making the dish is expression that is not dictated by the necessary technique or inherent chemistry of the process. Courts have also held the view that very short explanations of concepts, such as game rules and contest rules, are not copyrightable because granting copyright in them would effectively prevent any other recounting of such rules.

Governmental Works

Local, State, and Federal Government works such as judicial opinions, legislation, administrative rulings are not protected by copyright. These works are all in the public domain. Such works also include works published by the IRS, Copyright Office, United States Patent and Trademark Office, and all of the President's speeches.


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