What is protected by copyright and what is not?

“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” That’s the law. (17 U.S.C. ? 102(a)

Original Works of Authorship:

“He who is the author of a war lets loose the whole contagion of Hell.” – Thomas Paine

We usually understand an author to be someone who writes books or magazine articles, but copyright law uses the word in its broader first sense, meaning originator, creator, or source. So authors of works protected by the copyright are writers, but also composers and lyricists, dramatists and choreographers, artists and sculptors, illustrators and animators, designers and draftsmen, architects, computer programmers, photographers, film producers, poets, and the whole list of creative people who give us art, entertainment, decoration, reproduction, and reportage.

Fixed in [a] tangible medium:

It isn’t enough to have an idea, a sentiment, a passion, a tale to tell and just tell it to a group of friends at a barbecue — or even shout it from a soapbox. For a work to be protected by copyright, it must be in a form that can be seen and heard by others — or how can it be copied? It must be written down, cast in stone, recorded on film or a disc, or coded in a computer file on a hard drive, or held in or on some other “tangible medium,” and it must be made available to the public. There is no need for copyright protection of a play written down but locked away in a vault. Who is going to be able to copy it? So the copyright applies only to works of authors, originally created works, that are available to others in a form that can be copied.

The limits of copyright protection:

The scope of copyright protection is large, and sometimes it is more efficient to talk about something so big in terms of what it is not. The ideas expressed in writing, design, art, and music are not protected. Unrecorded performances are not protected. Names, titles and short phrases are not protected by copyright. Functional things are not protected no matter how pretty. Forms and structures are not protected. Facts are not protected.


Expression. Expression. Expression. Not the idea revealed and communicated by the work, but the way the idea is expressed in story, song, art or design. Not the sentiment expressed, but the poem that expresses it. Not the story told, but the way it is told in words, in film, on stage. How many times, in how many ways and media, will the lives of, say, a Michael Jackson or a Bernie Madoff be told and retold. No one owns those stories, not even those who lived them. Hamlet and The Lion King tell the same story, but the expression is different, and the latter is not a copy of the former.

Not the procedures, methods, systems, processes, concepts, and principles that might be described in a how-to or demonstrated in a video, but the means of describing those things as expressed in words, illustrations, diagrams, and pictures. Writing a book about a 30-day noodle-soup diet does not mean that you are the only one who can teach and benefit from the diet, but you are the only one who can sell and benefit from the book you wrote.

Not the discoveries revealed in a television program or the devices described in an article, but the television program and the article. Rights to the benefits from new discoveries and devices are rights that come with the grant of a patent. (And publishing an article about something that might be patentable, or showing and selling it on the Home Shopping Network, can erase your ability to get patent rights in the thing. So beware.)


One of the reasons that theaters and concert halls prohibit photography, video recording, and audio recording is that the photographer, videographer, and audio recorder who “fixed” the performance in a “tangible medium” are the copiersĀ of the captured work, of the video of the performance, for example, even though not the authors of the performance. One of the reasons that museums and galleries prohibit photography is that the photograph is a copy of the original work photographed. (One of the reasons in each case, because other considerations, such as trademark protection and the commercial use of images of people without their consent, for example, come into play.)

A performance of a play, a dance, a song, or a speech is not “fixed in [a] tangible medium.” Copyright protection of the performance, therefore, does not apply. So if you go to a Green Day concert and then go home and write about it in your blogspace, that writing about it (expression) is yours, no matter how well your telling about it evokes the experience of being there. The performance itself, an ephemeral thing, is done and gone, so that there is nothing left from which to copy.

When a performance is captured on film, magnetic tape, or a digital medium and made available to others (one hopes with the consent, cooperation, and compensation of the performer and the author of the work being performed), then that “record” of that particular performance comes under the protection of the copyright. The person or company that made the record is the author of the recorded performance and owner of the copyright in it. The performer and author of the work that was performed, having willingly participated in the recording of the performance, usually share in revenues received from sales of the recording by the recorder — either under an agreement or by force of law requiring payment of royalties in certain kinds of works.

So does that mean that when you manage to make a recording with your cell phone of some kind of a performance or display of a work, you own the copyright in the recording and the exclusive right to copy it? Well, yes, BUT … If you take a photograph of a painting, you have made a copy of the painting, and distributing the photograph infringes the copyright of the author (painter). If you make a recording of your favorite band playing your favorite song, never mind your discourtesy in not asking their permission, you’ve made a copy of the song, and assuming the song was at some point written down, your copy infringes the author’s (composer/lyricist’s) copyright. And when your sister has the lead in a community theater production of The Fantasticks (for which the theater has secured a performance license from the publisher and pays royalties, part of which go to the playwrights), and you make a video of the production, you’ve made an unauthorized copy of the play without the consent and compensation of the playwrights or the publisher, abridging their rights under the copyright.

Short Phrases:

If short phrases, slogans, epithets, shibboleths and epigrams were protected by copyright, the practice of writing and rhetoric would have become impossible centuries ago. So no one can claim ownership and the exclusive right to copy and broadcast the pithy comments, sly remarks, incisive observations, and wry quips emblazoned on bumper stickers and t-shirts, and your witty tweet can be passed around and repeated endlessly by one and all without your consent or approval.

So by what authority will American Express be all over you for selling jeans with “Don’t leave home without it” embroidered across the seat? Because slogans and short phrases used in the commercial marketing of goods and services can become the trademark slogans of the vendors that use them as such, and in fact “Don’t leave home without it” is a regsitered trademark of American Express.

Titles and names of things are in this category of short utterances without protection. There are more than a dozen films titled Love Story, only one of which is about Harvard and Radcliffe students in love, starring Ali McGraw and Ryan O’Neal.

So why can’t you make a movie or write a book called Star Wars? Because Star Wars is a trademark of Lucasfilm. When a title or name — such as Goosebumps and Law & Order — identifies a series of works, especially works that are commercially successful, the author, publisher, or production company can claim trademark rights in the title or name. So when you make a bespectacled boy with magical abilities named Harry Potter the main character of your novel, you can be sure that the note you receive from Scholastic Books will not be a thank-you.

Functional things:

“Useful articles.” Tools, machines, implements, vehicles, furniture, clothing … some of those things that we use are designed to be aesthetically pleasing, attractive, and distinctive, and some of them are striking, awe-inspiring, and breath-taking. The useful thing, however — the hammer, the dessert fork, the party dress, the ottoman, the automobile — is not protected by copyright.

That is not to say that useful articles cannot include or carry matter that is protected by copyright. Commemorative plates and paperweights commonly contain paintings and reliefs of historical scenes and persons. While the plate and the paperweight are not the subjects of copyright protection, the painting and the sculpture on them are.

And that is also not to say that the description or depiction of useful articles are excluded from copyright protection. On the contrary, the description of the thing in words, or a drawing, photograph, or digitally encoded computer image of it, come under the protection of the copyright. An “artist’s sketch” of the object, such as a fashion designer’s sketches and an engineer’s technical drawings, are “expressions” in a “tangible medium” that fall under the protection of the copyright; the “useful articles” fashioned after the descriptions or drawings do not.

There are two exceptions to the useful articles exclusion: Architectural works — that is, buildings — are subject to full copyright protection, except that buildings located in public places may be copied without limitation in drawings, paintings, photographs, and other such media. And vessels — that is ships and boats — that are of original design have copyright protection limited to three years. (There is, and has been for several years, a proposal before Congress to afford similar limited protection to fashion designs. Currently, fashion designs are protected only to the extent that they may use materials containing art and designs that are protected, and a recent Supreme Court decision confirmed that a design for embodied in an article of clothing that is capable of being expressed in another medium is protected by the copyright.)


Blank forms, no matter how prettily arranged, are not protected by copyright. Job applications, surveys, evaluations, customer feedback, and the myriad of other things with places to write name, address, date of birth, quality of services (“please check one”) and so on that we fill in and fill out are just frameworks on which we provide a place to record facts and sometimes opinions. There may be elements on the form, such as logos, watermarks, photographs, and paragraphs of detailed instructions that accompany the form, that may individually be “original works of authorship” in which someone may hold the copyright. And the completed form, if it asks for expressions of opinion, observation, description, narrative, exposition and the like, may have the protection of copyright, which may belong to the person who filled out the form. But the blank form is just a form.

Blank forms should not be confused with tests and some surveys and the like where there is “art” involved in forming the questions. In fact, tests and their answer sheets are specifically protected under the copyright.

Also fitting into the category of unprotected forms is the “layout” of the printed or otherwise tangibly fixed work. Magazines and Web sites, most notably, but also other serially produced works have established “style sheets” on which they lay out the content of each new or changed issue. The content itself may be protected by copyright, but the form on which it is laid out, the page structure, is not. Original artistic elements ornamenting a layout, such as logotypes and illuminations, may have copyright protection, but ornamental design elements comprising familiar symbols or mere variations of typographic ornamentation, lettering, or coloring do not.


As noted above, no one owns the story, only the way the author expressed it in words, pictures, and sounds. The facts related in the story are just that. Facts. And facts — including facts that aren’t true, by the way — belong to all of us, and we can retell the details of the story anyway we want to. We just can’t repeat the telling we read, heard or saw in the same way we read, heard, or saw it without the teller’s permission. So the score of the ball game, the teams and the players who participated, the plays that were made, those are all facts, and we can relate those facts however it suits us. You can write a story or a play about what happened, or capture the flow of the event in a dance, or make a movie about that game, or paint a painting capturing the decisive moment, and the copyright — the right to make and distribute copies — in the story, play, dance (that you recorded), movie, or painting you created belongs to you.

If that raises a question for you — If what words mean, their definitions, are facts, then how can there be copyright protection of a dictionary? — the answer returns to the fundamental concept of the copyright: It’s not the story but its expression. Compare several dictionaries and you will find them quite different both in what facts (origin, etymology, etc.) are included and how those facts, especially the meaning, are expressed. “Compilations” of facts, including databases, are specifically protected by copyright to the extent that there is “art” — that is, intelligent creativity — in the way the compilation is arranged and presented, the way it is expressed. Related to compilations are “collective works,” such as magazines and anthologies, that bring together under one title a collection of works of various authorship. Copyright in the individual works generally remains with the author or legal owner of the copyright, but the collection as a whole has its own specific copyright protection.