What is Copyrightable (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.” — Copyright Act Section 102

In order for a particular work to be protected by Copyright, there are certain requirements that must be met and there are also certain restrictions on the types of content allowable.

Works of Authorship

First, the content must be a “Work of Authorship”. The Copyright Act gives a list of 8 categories into which copyrightable works fall:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

Though this list is “non-exhaustive”, some courts have ruled that if a work isn’t able to fit into one of these categories (or a convincing argument made as to why it should be included in one), copyright protection may not attach to the work. Some more nontraditional types of work have been subsumed within a category through hard fought legal battles (computer code, for instance is classified as a literary work), while other fights have led to the addition of categories over time (sound recordings and architectural works, even photographs at one time weren’t accepted as copyrightable works).

Originality

In order to qualify for copyright protection a work of authorship must be an original creation. In reality, the originality bar is set pretty low. All that is required under copyright law is that the work is original to the author and that it show some “modicum of creativity”. The originality aspect is very interesting because it does not require novelty or individuality, but simply that the work is an original creation coming from the author. If someone was locked in a room for their whole life without access to any literature and somehow was able to pen a play exactly like Macbeth, it would still be able to get copyright protection. Even if it was word for word, if the author was able to prove that the work was original to them and not copied or borrowed from, copyright law would allow that work to have protection.

Originality also requires a level of creativity, though the required level of such creativity can vary. For instance, a photographer see a picture and shoot the exact same subject from a different angle or with a different lens and courts have found this difference creative enough to grant protection, but an ordering of a phone directory by telephone number rather than by name would not. As we will discuss later, there are several types of content that are categorically barred from copyright protection and many of those are prohibited because of the originality/creativity aspect.

Fixation

Finally, for an original work of authorship to qualify for copyright protections, it must be fixed. Copyright protects the expression of ideas, so in order to be protected the work must be expressed! Fixation under copyright law means that it is written, notated, etc. in a “tangible medium of expression”, meaning that it is recorded in a nontransitory way. This fixation doesn’t have to be permanent (pencil is ok) but cannot be in a format that is fleeting or naturally transitory.

Think of it like this: the work has to be able to be submitted in some form to the Copyright Office. If there’s no way to do that, there’s a good chance that it’s not properly fixed.In this way, a drawing in the sand or even an elaborate sand castle is not “fixed” because the wind or water can take it away at any moment. It is not copyrightable unless and until someone takes a picture or video of it or sketches it out on paper.

What is not copyrightable

Just as there are categories of copyrightable works of authorship, there are certain categories of content that are not allowed to have copyright protection. These prohibited types of works stem either from the categorical failure of one of the requirements above (works of authorship, originality, fixation) or because the works are not properly subject to copyright law.

• Ideas — as discussed above, copyright protects the expression of ideas, not the ideas themselves
• Concepts, principles, or discoveries — these would fall under the purview of Patent law or are not protectable as intellectual property at all
• Procedures, methods, systems, processes — these would fall under the purview of Patent or trade secret law or are otherwise not protectable as intellectual property at all
• Formats, layouts, and blank forms — this type of content would fail the “creativity” test above.
• Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down) — these are not fixed and therefore cannot be protected under copyright
• Titles — Except for limited circumstances, usually when the title is (or involves) a character or is protected by some other legal protection. Allowing titles to be copyrighted would frustrate the purpose of the originality aspect of copyright protection
• Names, short phrases, and slogans — these would likely fall under Trademark law and just as with titles, granting protection often would frustrate the originality aspect of copyright protection.
• Familiar symbols or designs — this restriction speaks to the functionality of certain content that would otherwise be copyrightable. Having intellectual property protection also means that there is a restriction on others use of that property. For content like a familiar symbol (let’s say a circle), restricting stifles creativity and is counter to the reasons why copyright law exists in the first place. Think of how difficult creative pursuits would be if the circle or the smiley face emoji or the standard shape of a bicycle was “owned” by someone.
• Mere variations of typographic ornamentation, lettering, or coloring — as with symbols and designs, this is a functionality restriction. Though fonts and particular color schemes can be intricately planned and creative, restricting others use of such content would run counter to the principles of copyright law.
• Mere listings of ingredients or contents — I usually call this the recipe rule. This restriction is a mix of idea/expression and functionality. Even if your recipe is the most creative and unique mixture of ingredients, the recipe in itself is not able to be protected by copyright. Often you can copyright a particular iteration of the ingredients and preparation (how you write out the instructions) or an arrangement of contents in a copyrightable format, (i.e. a cookbook), but the recipe itself is not copyrightable.
  The Copyright Office provides some guidance for those of you who may want to protect your cookbook or your recipes: “A registration for a ‘recipe’ may cover the written description or explanation of a process that appears in the work (the cookbook), as well as any photographs or illustrations that are owned by the applicant. However, the registration will not cover the list of ingredients that appear in each recipe, the underlying process for making the dish, or the resulting dish itself.”

for more information on the types of works that are and are not protected by Copyright, see https://www.copyright.gov/circs/circ01.pdf and https://www.copyright.gov/circs/circ33.pdf