Works Not Covered By Copyright

You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.

Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.

Facts

You can use facts in your online work without the fear of liability because facts are not protected under copyright law. As we explain in the section on Copyrightable Subject Matter, copyright protection applies to "original works of authorship." Although the level of creativity required to be "original" is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are noncopyrightable facts.

However, there may be situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. For example, a sports almanac may arrange baseball scores in a creative way, a genealogy chart may arrange birth dates in an original way, or a cookbook may arrange ingredients in a creative and original way as part of its recipes. In each of those instances, the creator of the work would have a copyright in the creative arrangement of the facts, but not the facts themselves.

Works Created by the United States Government

You can use any work of the United States Government because copyright law does not cover such works. Works of the United States Government include:

  • federal judicial decisions
  • federal statutes
  • speeches of federal government officials given in the course of their employment
  • federal government press releases
  • federal government reports (such as census reports)

However, note that copyright law may protect works created by others that the United States Government receives by assignment, bequest, or otherwise.

While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in Can States Copyright Their Statutes? for more information. However, be aware that Oregon recently asserted copyright ownership "in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law." See our blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.

Works Not Fixed in a Tangible Form of Expression

Copyright protection only applies to "original works of authorship" that are "fixed in a tangible medium of expression." Consequently, if you attend an improvisational speech that has not been notated or recorded, you may publish the speech in your online work without fear of liability. (However, you should cite the speech in order to avoid the taint of plagiarism.)

Ideas, concepts, or principles

Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven't actually expressed anything. You become the copyright owner only when you put that idea into "expression" through words (e.g., in a blog post) or other tangible form (e.g., in a video, a photograph, or a podcast).

For example, Einstein's theory of special relativity is not copyrightable because it is an idea (or concept or principle). However, Einstein's article, "On the Electrodynamics of Moving Bodies," in which he explained and expressed the theory, was copyrightable.

If you come across an idea/concept/principle, you can use it in your online work with out fear of liability as long as you do not use the form in which it is expressed (which may be copyrightable). However, you should consider citing to the source in order to avoid a claim of plagiarism.

Words, Phrases, or Familiar Symbols

In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)

While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word "Apple," the slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark section for more information on using a trademark protected word, phrase, symbol, or other indicator that identifies the source or sponsorship of goods or services.

Works in the Public Domain

You can use any work in the public domain without obtaining permission of the copyright owner. A work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then-applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as "Everything on this site to which we own copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.

Determining whether any particular work is in the public domain is a complex task, and the answer often depends upon when the work was published, whether it was published with notice, and whether the copyright holder subsequently registered the work. However, there are some rules of thumb that will help you with this analysis:

  • First, any work that was published before 1923 is in the public domain.
  • Second, any work published without a copyright notice between 1923 and 1977 is in the public domain.
  • Third, works created after 1989 generally are not in the public domain, regardless of notice or registration, unless the work has been dedicated to the public domain.

If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart that shows when different types of works (published, unpublished, published outside the US) will fall into the public domain based on an analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.

A word of caution about using public domain works. You should check whether a public domain work has already been incorporated into another work. Although the public domain portions of that new work are not protected, the author's new expressive content and selection and arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:

  • Photographs of the Mona Lisa that are designed to precisely replicate the original work will likely not enjoy copyright protection because they are intended to capture Leonardo Da Vinci's expression of the painting as closely as possible. However, a photograph of a sculpture that is in the public domain may be protected by copyright because of the skill and creativity involved in composing the photograph.
  • The text of a book in the public domain may be used freely, but a current publisher of the book may have copyright rights to the expressive elements of a recently published edition (e.g. the new layout, cover art, etc.).
 

Last updated on May 9th, 2008

   
 
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