Can I Copyright This?

A 1907 volume of copyright applications. Photo: David Rice.

This is a guest post from Nicole Lamberson of the Copyright Office. She explains why copyright law safeguards the great American novel but not a recipe or a selfie taken by a monkey.

Since George Washington signed the first federal copyright law in 1790, copyright has continuously evolved into a system that encompasses everyone. Everyone uses copyright-protected works daily, and everyone is a copyright owner — even if they don’t realize it.

Copyright is a type of intellectual property that protects an original work of authorship as soon as it is fixed in a tangible medium of expression.

So what does that mean?

The official copyright seal. Photo: David Rice.

To be copyrightable, a work only needs to meet a few minimal standards:

First, a human being must have created the work. Selfies taken by a very talented monkey or paintings by an artistic elephant aren’t eligible. Similarly, a work produced by a machine without any creative input or intervention from a human author doesn’t qualify.

Second, the work must be an independently created, original work of authorship. This means that an author can’t copy someone else’s work and claim it as their own. But if two authors create similar works without ever knowing of the other’s work, copyright protects both.

Third, a work must possess a minimum degree of creativity to successfully claim copyright. A basic or routine expression lacking a creative spark, such as a telephone directory with names and numbers listed alphabetically, is not enough for copyright — no matter how much effort it took to compile.

And fourth, the work must be fixed in a tangible medium of expression, meaning it has been captured in a sufficiently permanent medium that can be perceived, reproduced or communicated for more than a short time. If an individual walks around singing a spontaneously created song but then doesn’t write it down or record it, copyright can’t protect it.

With few requirements, it would seem that most creative works qualify for copyright protection; however, the law excludes quite a few types.

What isn’t protected by copyright?

Ideas. Having an idea for the next great American novel isn’t enough. It has to be written down first. Copyright will protect specific fixed content, but not the idea itself. Likewise, concepts, principles, discoveries and inventions are not copyrightable on their own.

Recipes. A family recipe may yield a unique take on a delicious dish, but copyright won’t protect it. Copyright law specifically excludes procedures, processes, systems, methods and facts. This means a mere listing of ingredients or simple instructions for making a dish won’t be protected. However, any written description of the dish or the process, along with any photos or illustrations, might be.

Familiar symbols and designs. Familiar shapes, symbols and designs cannot be protected because they do not contain a sufficient amount of creativity. A company’s logo may fall into this category, as do blank forms, layouts and formats, and typefaces.

Names, titles and slogans. A new business may create a fun, short slogan to describe its services, but copyright law won’t protect it. This is because words and short phrases do not contain a sufficient amount of authorship or creativity.

Remember, copyright is just one form of intellectual property law. Trademark and patent law might protect what copyright can’t.

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