What Can Be Copyrighted and What Can't

Tue, 3 Jul 2012

I've written about copyright before explaining how, in its default state, it's a restriction on society. In this I intend to discuss the scope of copyright restrictions.

It seems that copyright lawsuits are a common occurrence these days: Reference things like Adrian Jacobs v. J. K. Rowling, Jordan Scott v. Stephenie Meyer, Oracle v. Google, and Tetris Holding LLC v. Xio Interactive. This is why it is a good idea to be aware of what is and isn't copyrightable. For example, if you wrote a story about a boy wizard going to a magical school, and, years later, a former friend or colleague also writes a story about a boy wizard going to a magical school, is that copyright infringement? To answer this question there are a number of ways to determine in what ways copyright restrictions do and don't apply to a work. Please take note that this article is just meant to be a brief outline and should not be considered legal advice. You should always consult an attorney for your specific legal questions.

The first thing to be aware of is that copyright restrictions are supposed to be temporary, with all creative works eventually entering the public domain, where anyone is then free to copy or use them. I say that it's "supposed" to be temporary because, whenever their works get close to entering the public domain, major corporations just lobby the U.S. government for more time and they've always been given it. Considering this, copyright restrictions (in reality) last forever. These changes are also made retroactively to works that were already covered by shorter durations. I like how Richard Stallman described this as "perpetual copyright on the installment plan." The U.S. government has also taken things that were already in the public domain (in the U.S.) and re-applied copyright restrictions to them.

Although copyright restrictions are supposed to be temporary nothing has entered the public domain due to copyright expiration in my lifetime, and probably never will.

Another important thing to know is that "minimal creativity" is required in order for something to be eligible for copyright restrictions in the first place. It's easiest to think of this in terms of a list. A list in which names, addresses, and phone numbers are listed alphabetically is not eligible for copyright restrictions, because it is simply a compilation of raw facts that took no additional effort on your part to make. However, if you organized those names, addresses, and phone numbers into specific categories, that might meet the minimum requirement. As far as the law goes, "creativity" is broadly and objectively defined. It doesn't have to mean that you poured your heart and soul into bringing a brand new concept to life. Even just presenting information in a way other than how you received it could demonstrate creativity. As another example, a list of facts about President Lincoln would probably not be eligible for copyright. As soon as you turn it into your own creative work, however, assembling that research in unique ways and adding your own ideas, thoughts, and theories to it, that could be.

Next, in order for your work to be eligible for copyright, it must be "fixed in a tangible medium of expression." This means that a story that you've kept in your head, no matter how hard you may have worked on it, how detailed it might be, or how much creativity might be involved, is not eligible for copyright restrictions. However, if you wrote that story down first onto a hard copy, it could be.

Perhaps the most important thing to realize, however -- and this is where the earlier example of a story about a boy wizard comes in -- is that you cannot copyright an idea, procedure, process, system, method of operation, concept, principle, or discovery. In other words, you cannot copyright your idea about a boy wizard going to a magical school. You can only copyright your own expression of that idea, meaning your specific story in your specific words. If someone else takes your story and copies it word for word it might be copyright infringement, but if that person just wrote a story that features a similar predicament to yours, it may not be.

There could be instances, though, where copyright restrictions might still apply. A specifically and intricately described character or plot could be subject to copyright restrictions. No one but J. K. Rowling can write a story about a boy wizard named Harry Potter, who has a lightning-shaped scar on his forehead, goes to a school named Hogwarts, and battles an evil wizard named Voldemort. Furthermore, someone couldn't simply change Harry Potter's name to Bob Smith while leaving all other details as-is. The character and his specific features are too distinctive. Copyright law, however, doesn't cover character archetypes, so if the only thing that Bob Smith has in common with Harry Potter is that he is a boy wizard who fights evil (if, other than that, he goes to a magical summer camp and battles a witch, for example), it would probably not be copyright infringement. "Lovable, dashing rogue" is not copyrightable. "Lovable, dashing rogue named Han Solo, who travels in a ship called the Millennium Falcon and is on the run from a gangster named Jabba the Hutt" could be.

If you decide to publish your creative work please use a free culture or free software license, as applicable. You're not required to publish it but sharing creative works is a socially positive thing, and the public should be given equal rights to use, modify, and share it but that's something for a different article.