What copyright does not protect

Materials Not Creative Enough to be Protected

No lines are drawn by the law between what is creative enough to be protected by copyright and what is not creative enough. Only cases and statutes tell us what is or is not creative enough. The Copyright Act says:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 1

Idea / Expression Dichotomy

You hear the phrase “freedom of expression” as describing the First Amendment right. It is really the freedom to communicate facts and ideas that the First Amendment protects. 2 Copyright law protects the expression of facts and ideas, not the ideas and facts themselves. Works that have not been fixed to a tangible medium are just ideas. Ideas are fair game for everyone to express in their own words. And ideas have been stolen since the dawn of art and literature. Here are some examples:3

  • Canterbury Tales by Chaucer took ideas from the Italian author, Boccaccio.
  • Shakespeare took plots for 90 percent of his greatest plays from other authors.
  • Dimitri Yernetz wrote a series of books about a young magician under the title Tanya Grotter, written after J. K. Rowling’s Harry Potter.
  • Cameron Crowe’s movie Vanilla Sky was a remake of a 1997 Spanish movie called Open Your Eyes. Penelope Cruz starred in both.

Works with Expired Copyrights (“Public Domain”)

When a copyright expires, the work is said to fall or merge into the “Public Domain.” This means the work is no longer protected and anyone can copy, distribute, display, or perform the work. Any work that was created or published before 1923 is now in the Public Domain. Many works created much later than 1923 are also in the public domain because certain formalities required by law at the time were not satisfied. There are other ways works can wind up in that category. Any work created by the federal government is automatically in the Public Domain. 4 Anyone can also donate their works to the Public Domain by providing a statement that anyone may copy the work.

For more detail about the duration of copyrights and the Public Domain, see:

Work that is Copied as Fair Use

There is a limited exception to the author or artist’s monopoly over the use of works. If the purpose of copying is for education, research, teaching, comment, or criticism and other factors apply, the copying may qualify as a “fair use” exception to the prohibition of copying or other exclusive rights of copyright. If fair use applies, permission to copy is not required. See Fair Use.

1 17 USC Section 102(b)
2Harper & Row Publishers, Inc. vs. Nation Enterprises, 471 U.S. 539, 556 (1985)
3 “What a Great Idea. Think I’ll Steal it.” James Adams, The Globe and Mail. February 19, 2003. www.globeandmail.com.
4 17 USC Section 105