Copyrights: The Protected And Unprotected

Lee WilsonOctober 31, 20183415 min

Most people realize that copyright protects works of art like poems and short stories, photographs, paintings and drawings, and musical compositions. It may be less obvious that copyright also protects more mundane forms of expression, including such diverse materials as advertising copy, instruction manuals, brochures, logo designs, computer programs, term papers, home movies, cartoon strips, and advertising jingles.

Artistic merit has nothing to do with whether a work is protectable by copyright; in fact, the most routine business letter and the most inexpertly executed child’s drawing are just as entitled to protection under our copyright statute as bestselling novels, hit songs, and blockbuster movies.

However, copyright does not protect every product of the imagination, no matter how many brain cells were expended in its creation. In fact, any discussion of copyright protection must be premised on an understanding of what copyright does not protect.

Idea Versus Expression

It is such an important principle of copyright law that it bears repeating: copyright protects only particular expressions of ideas, not the ideas them­selves. This means, of course, that if the guy sitting behind you on the bus looks over your shoulder and sees, comprehends, and remembers your sketches for a necklace formed of links cast in the shape of sunflowers, he is legally free to create his own sunflower necklace so long as it isn’t a copy of yours. It may be unethical for him to steal your idea, but it’s neither illegal nor actionable in court. Although this may seem unjust, if you think about it, it’s logical. The United States Constitution empowered Congress to pass a copyright statute granting the creators among us property rights in the products of their imaginations so that American society could gain the benefit of their creations. Because ideas are the building blocks for creations of any sort, and because one idea may lead to thousands of expressions of that idea, grant­ing control over an idea to any one person would have the effect of severely limiting creative expression; no one else would be able to use that idea as the basis for a new creation.

Therefore, copyright protects only your particular expression of an idea, not the idea itself. Similarly, copyright protection is denied to procedures, processes, systems, methods of operation, concepts, principles, or discoveries because these products of the imagination are really all particular varieties of ideas.

This means that your idea of printing grocery coupons right on the brown paper bags used in your supermarket can be copied by anyone, even a com­peting grocery store, although the particular expression of your idea—your copy and artwork for the bags and the advertisements publicizing the promo­tion—may not.

And your system of giving your customers double the face-value discount of any coupon if they use it to buy two product items at the same time is not protectable by your copyright in your coupon-promotion materials and can be employed at any time by anyone, without your permission.

Further, if you print recipes on your grocery bags in addition to discount coupons, you cannot, of course, stop anyone from using the method outlined in the Low-Fat Meatloaf recipe to create a low-fat meatloaf. Nor can you stop anyone, even a competitor, from employing your concept of using a low-fat meatloaf recipe to sell the food products used in the recipe or from employing the marketing principle behind your promotion—that food shoppers are likely to purchase particular brands of food products that are specified by name in an interesting recipe. And even if you were the first person in the universe to come up with a technique for diminishing the fat content of the finished dish, once you disclose your discovery to the public, you can’t stop anyone from recounting it to anyone else. You can’t even stop anyone from using the information outlined in your meatloaf recipe to create his or her own recipe for low-fat meatloaf.

Unprotectable Elements

There are a few categories of products of the imagination that are too close to being mere unembellished ideas for copyright protection to apply. In other words, these categories of “creations” lack sufficient expression to be granted copyright protection. There are several commonly occurring, unprotectable elements of various sorts of works from which the copyright statute or courts have withheld protection, including the following:

  • Literary plots, situations, locales, or settings;
  • Scènes à faire, which are stock literary themes that dictate the incidents used by an author to express them;
  • Literary characters, to the extent that they are “types” rather than original expressions of an author;1
  • Titles of books, stories, poems, songs, movies, etc., which have been uniformly held by courts not to be protected by copyright;
  • Short phrases and slogans, to the extent that they lack ex­pressive content;
  • The rhythm or structure of musical works;
  • Themes expressed by song lyrics;
  • Short musical phrases;
  • Arrangements of musical compositions, unless an arrange­ment of a musical composition really amounts to an alter­nate version of the composition;
  • Social dance steps and simple routines, which are not copy­rightable as choreographic works because they are the com­mon property of the culture that enjoys them;
  • Uses of color, perspective, geometric shapes, and standard works of the visual arts;
  • Jewelry designs and other creations that merely mimic the structures of nature (such as a jeweled pin that accurately replicates the form of a honeybee), since the natural forms on which such “creations” are based are in the public do­main, the property of all humankind;
  • Names of products, services, or businesses;
  • Pseudonyms or professional or stage names;
  • Mere variations on familiar symbols, emblems, or designs, such as typefaces (this includes typefonts, letterforms, and the like), numerals or punctuation marks, and religious emblems or national symbols

Contributed to Branding Strategy Insider by: Lee Wilson, Attorney-At-Law. Excerpted from his new book The Copyright Guide, How You Can Protect And Profit From Copyrights, Allworth Press.

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