What You Can and Can't Copyright

A few days ago, I was discussing this whole "Facebook Copyright Notice" ridiculousness and in that post I mentioned that your status updates were copyrightable.  That statement created a small stir (insomuch as I am capable of creating a stir) and since then, people have been asking me about what is and isn't copyrightable.  So I thought I'd quickly address it here.

You can copyright all "original works of authorship fixed in any tangible medium of expression."  U.S. Copyright Law protects, among others," literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."  The list of works protected under the law is not exhaustive and is wide open to future forms of artistic expression not contemplated by the drafters of the law.  Here's what copyright law does not protect: "facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."  To get a better sense of how that works in the real world, take a look at this picture my wife snapped of me last year.

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I'm sitting on the front stoop of my brother's apartment in Boston.  Now, the stoop itself is not copyrightable, nor am I, for that matter.  In fact, every "thing" you see in that photo - from my clothing to the keys I'm holding, to the flower arrangement behind me - none of that is copyrightable because they're all "facts" (they may on the other hand be patent protected, but that's an issue for another time).  However, the photograph containing all those things is copyrightable and is in fact the intellectual property of my wife.  That's because it is her "expression" of those facts and it is fixed in a tangible medium (i.e. photograph). [For the record, the photo was taken with Instagram and like Facebook, does not claim any ownership over content you create with it.  It merely takes a license to use and display your content for as long as you own an Instagram account.]

The same goes for other types of communication, like emails or interviews, that deal heavily in facts and are not often considered to be original works of authorship worthy of copyright protection.  However, generally speaking, both are protectable forms of expression.  While the facts contained within the email or interview are not protected under copyright law, it is the arrangement of those facts in a fixed medium (for an interview, a transcript or tape recording. For an email, well...an email) that gives it expression.  There's a good article here discussing the copyrightable nature of interviews.  I should note that the owner of the copyright to an interview can vary depending on the facts of the case.

If you ever find yourself asking if something you've created is protected by U.S. copyright law, just ask yourself:

  1. Did I create this?
  2. Is it something that can I show people (if it's digital, it counts.  Your expression need not be printed on paper)?
  3. It is an expression of something?

If the answer is yes to all three, then you probably have a work that is protected by U.S. copyright law.  Of course, like everything else in the law, some of this stuff can change depending on the specifics of each individual case.  If you are unsure about whether something you've created is copyrightable, ask an attorney.

One last note: as a rule, there's no size limit placed on the work in order to qualify for copyright protection, which is why your two-line status update qualifies for copyright protection.  However, the smaller your creation becomes, the more you move out of copyright and into trademark territory (for example, a phrase like "You're Fired!" or even single words or names like "Superman" or "iPhone".  Logos and branding are also generally the purview of trademark).  In short, your scatological haiku is protected by copyright, but your friend saying "that's a spicy meatball!" is protected by trademark.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA