Digging Deeper into United States Copyright Law -- What is and is not subject to copyright?

As I have noted before in previous posts, there is an amazing amount of folklore associated with copyright law in the United States. Everyone claims to be an instant expert and has an opinion about what is and what is not subject to copyright. I am not really writing a series on copyright, I am simply tired of writing introductory pablum and have decided to get down to serious analysis.

Copyright law in the United States is made up of three major components: statutory law as enacted by the United States Legislature, Federal Regulations enacted by governmental agencies and case law decided by the U.S. District Courts, the Courts of Appeal and the Supreme Court. The process of determining what is and what is not "the law" is extremely complex and is decided on a case by case basis by the Courts. There are extreme cases of criminal copyright violations but they are comparatively very rare and usually make the news. With a few notable exceptions, the day-to-day civil, as apposed to criminal, copyright cases go entirely unnoticed by the news media. The cases that do surface, usually involve major corporations who are involved in multi-million dollar lawsuits.

For example, if you study the Federal Judicial Caseload Statistics, you will see that the Federal Courts are preoccupied with Board of Immigration appeals, Bankruptcy appeals, motions for writs of habeas corpus and U.S. Court of Federal Claims appeals. Civil filings in the Court of Appeals involved primarily civil rights, labor law filings, foreclosure cases. But guess what? In 2013, intellectual property cases involving patents rose 32 percent to 5,839 cases and copyright cases were up 48 percent to 3,553. In 2013, there were a total of 56,453 cases filed in the U.S. Court of Appeals. Interestingly, by 2015, the caseload of the U.S. Court of Appeals fell to 54,244 cases. For all years, See Federal Judicial Caseload Statistics.

The number of copyright cases may seem large, but compared to the number of attorneys and cases filed in all of the state courts, it is vanishingly small. For many years, my personal case load usually ran over 100 cases at a time.

So where do we start in understanding copyright law? I suggest the U.S. Copyright Office website. If you are at all concerned about copyright law, go to the source and forget the news commentary.

Here is the basic explanation, from the Copyright Office, in answer to the question, what does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

So now, if we want to know more, we go to Circular 1, Copyright Basics.

Now if we want to answer the question asked in the title of this post, we go to page 3 and read the following:

What Works Are Protected? 

Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: 

1. literary works 
2. musical works, including any accompanying words 
3. dramatic works, including any accompanying music 
4. pantomimes and choreographic works 
5. pictorial, graphic, and sculptural works 
6. motion pictures and other audiovisual works 
7. sound recordings 
8. architectural works 

These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.” 

What Is Not Protected by Copyright? 

Several categories of material are generally not eligible for federal copyright protection. These include among others: 

• works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) 
• titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents  
• ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration 
• works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

All of those Federal Court cases arise because people and companies disagree about the meaning of these definitions.

How do we ultimately answer the question of what is and what is not protected? We go to court and a judge or judges in the Federal Court system will ultimately answer our questions. In a court case, we used to say everybody loses. The time and expense are only rarely compensated by the judgement. If you think you have a claim, find a practicing copyright attorney with experience in court cases and sit down and talk it out. Pay his or her hourly rate and listen to what they have to say. If you don't like the opinion you receive, try again with another law firm. But be aware of this one important fact. Going from firm to firm to try and find someone who agrees with you is a well known tactic among attorneys and we can usually spot a shopper after only a few minutes of consultation. If you really feel strongly, go to law school, take the bar exam and represent yourself. Don't come to me, I am completely retired from the practice of law.