There can be a lot of confusion when it comes to protecting intellectual property like copyrights. Part of the confusion lies in the fact that there are three main types of intellectual property that are given legal protection under three different statutory protection regimes — copyrights, trademarks, and patents. In this article, the top-rated Copyright Attorneys at Revision Legal discuss some of the things that CANNOT be copyrighted.

What is a Copyright?

A copyright is a legal protection for:

• An original
• Work of creative authorship
• Made by a human being
• Fixed in a tangible medium — like paper, photographic film, audio recording, etc.

A copyright gives the owner the exclusive right to reproduce, sell, perform, or make other use of the copyrighted work. Further, copyright law protects works that are derivative of the original work of authorship.

From the above definition, we can see various things that CANNOT be copyrighted. For example, you cannot copyright something that is not original and not yours. As noted, this applies to derivative works. So, if you are a fan of Star Wars or Harry Potter, you cannot copyright stories that are derivative of those stories and characters. Indeed, any effort to create such stories might cause you to be sued for copyright infringement.

An exception applies for original works for which the copyrights have expired. The various works of Shakespeare were written so long ago that any copyrights for them have long expired. Thus, if you were to write a derivative story about Romeo and Juliet, your new story can be copyrighted.

Original works of creative authorship also exclude various things that might be deemed to lack creative authorship. These include common phrasing and common ideas, which, being common, cannot then be deemed original. Also excluded are information, tabulations, and data since such are not original creative works. For example, weather data is not something that can be copyrighted. Note further that original creative works must have a human origin to be copyrightable. Thus, for example, the US Copyright Office rejects copyright applications for works created by computers and by animals.

A few other things that cannot be copyrighted include:

• Ideas, methods, processes, and inventions — if these can have legal protection, the protection is afforded by patent law (although ideas are problematic under patent law as well as copyright law)
• Formulas, instructions, lists, recipes, etc. — again, if protectable, patent law would be the manner of protection
• Original works of authorship created by government officials
• Names, titles, slogans, and short phrases — these are most often protected under trademark law
• Internet domain names — these are legally protected under rules and procedures promulgated by the Internet Corporation for Assigned Names and Numbers
• Materials in the public domain — some authors of original works explicitly release their works into the public domain for everyone to use/enjoy; other materials “fall” into the public domain after the expiration of their copyright protections; government documents are public domain
• Typefaces, lettering, fonts, etc. — these might be protectable under trademark law
• Layout and design — might be protectable under design patent law.

Contact The Copyright Attorneys at Revision Legal

For more information, contact the experienced Copyright Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

The Legal Boundaries of Copyright: What Falls Outside Copyright Protection

Copyright law defines its own scope — and just as importantly, its own limits. The boundaries matter both for creators who want to understand what their competitors are free to copy and for users who want to know what they can freely take from existing works without permission. These limits are embedded in the Copyright Act itself and have been extensively developed through case law over more than a century.

The Idea-Expression Dichotomy

The most fundamental limitation on copyright is the idea-expression dichotomy, codified at 17 U.S.C. § 102(b): “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.”

Copyright protects the specific expression of an idea, not the idea itself. A novelist who writes a mystery set in a Victorian-era detective agency cannot copyright the idea of a Victorian detective — only the specific characters, plot, dialogue, and expression in that particular novel. This principle ensures that copyright’s monopoly does not extend to the building blocks of future creative works. Courts have applied this principle rigorously. In Baker v. Selden, 101 U.S. 99 (1879), the Supreme Court held that a book explaining a system of bookkeeping could be copyrighted, but that did not prevent others from using the bookkeeping system itself.

The practical implication: if your creative work is built around an idea, process, or method that competitors find valuable, copyright will not stop them from using the idea. They cannot copy your specific expression, but they can independently develop their own expression of the same idea. For methods, processes, and inventions, patent law — not copyright — is the appropriate form of protection.

Works That Lack Originality

Copyright requires originality — independent creation plus a minimal degree of creativity, as established in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). The Supreme Court in Feist held that a telephone directory arranged alphabetically was not copyrightable because alphabetical arrangement is mechanical and lacks the minimal creativity the Constitution requires. The “sweat of the brow” doctrine — the idea that labor alone in collecting and compiling information should earn copyright protection — was explicitly rejected.

Works that fail the originality test include exact copies or reproductions of existing works (where the copier added nothing), data tables and databases assembled through purely mechanical processes, calendars, schedules, and other standard measurement charts, and factual compilations arranged in an obvious or standard manner. Note that a compilation of facts can be copyrighted if the selection, coordination, or arrangement of the facts reflects independent creative choices — but the copyright extends only to that selection and arrangement, not to the underlying facts themselves.

Government Works

Under 17 U.S.C. § 105, works prepared by officers or employees of the United States government as part of their official duties are not eligible for copyright protection. Federal statutes, judicial opinions, administrative regulations, government reports, and other works created by federal government employees in their official capacity are in the public domain. Anyone may copy, reproduce, publish, or create derivative works based on federal government documents without permission or royalty obligation.

Note that this rule applies to the federal government, not state governments. State government works may or may not be protected by copyright under state law. The Supreme Court in Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020), held that official annotations to state statutes prepared by a state-contracted company were also in the public domain under the “government edicts” doctrine. The doctrine holds that law-making officials cannot hold copyright in the works they create in their lawmaking capacity — including judicial opinions, official regulations, and legally binding annotations.

Works in the Public Domain

Copyright protection is not permanent. Under current law, for works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years (17 U.S.C. § 302(a)). For works made for hire and anonymous works, the term is 95 years from first publication or 120 years from creation, whichever expires first (§ 302(c)). Works published before 1928 are generally in the public domain in the United States as of 2024.

The public domain is not a legal no-man’s land — it is a recognized body of creative work freely available to all. Shakespeare’s plays, Beethoven’s compositions, and nineteenth-century novels are public domain. A filmmaker can adapt Pride and Prejudice without licensing from Austen’s estate because there is no surviving copyright to license. However, derivative works created from public domain material — a modern film adaptation, an annotated scholarly edition — are independently copyrightable as to the new material added.

Items Protected Under Other Legal Regimes

Several categories of creative output are commonly believed to be copyrightable but are instead protected — if at all — under other legal frameworks:

• Names, titles, slogans, and short phrases — not copyrightable per the Copyright Office’s Compendium (§ 313.4(A)); however, these may be protected as trademarks if they function as a source identifier in commerce
• Typefaces and fonts — the Copyright Office does not register ornamental typeface designs as such, though the underlying software code for a font may be copyrightable; unique typefaces may qualify for trade dress protection
• Domain names — governed by ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) and the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), not by copyright law
• Fashion design — clothing designs generally are not protected by copyright in the United States (though fabric prints may be); fashion brands typically rely on trademark and trade dress protection for brand identity
• Recipes and formulas — the listing of ingredients and basic cooking instructions is not copyrightable (they are facts or functional directions), though the prose surrounding a recipe — the creative expression — can be protected
• Works created by AI without human authorship — the Copyright Office has consistently declined to register works created autonomously by artificial intelligence, holding that human authorship is a constitutional and statutory requirement

Understanding what copyright does not protect is as important as understanding what it does. If you have a creative work, brand element, or business asset that you need to protect, the copyright attorneys and IP lawyers at Revision Legal can evaluate the full range of available legal protections — copyright, trademark, trade secret, and patent — and recommend the right strategy. Contact us for a consultation.