to the compiler’s selection or arrangement
forms—are probably protectable. However,
of all the forms as a group. In one case,
where there are only a few ways to express
for example, a court held that the blank
the facts and ideas contained in such forms,
forms contained in an organizer (including
the merger doctrine comes into play to
calendars, telephone and address pages,
severely limit protection. For example, one
and sections for recording daily activities)
court held that insurance bond forms and
were not copyrightable. But the organizer
indemnity agreements were protectable,
as a whole was a protected compilation.
but because the forms contained standard
However, the defendant was not liable for
language that would have to be included
copyright infringement because it only
in any form designed to accomplish the
copied a part of the organizer, not the
same purpose, only verbatim copying of
whole thing. ( Harper House, Inc. v. Thomas
the forms’ exact wording would constitute
Nelson, Inc. , 889 F.2d 197, (9th Cir. 1989).) See
infringement. ( Continental Casualty Co. v.
Chapter 6, “Adaptations and Compilations,”
Beardsley, 253 F.2d 702 (2d Cir. 1958).)
for a discussion of compilations.
TIP
In contrast, other courts have extended
If you have produced any type of
copyright protection to a form used to
form that you want protected by copyright,
record medical laboratory tests ( Norton
by all means register it with the Copyright
Printing Co. v. Augustana Hosp. , 155
Office. If the Copyright Office refuses to register
U.S.P.Q. 133 (N.D. Ill. 1967)); record-
the form, insist that it do so under the rule of
keeping forms with instructions ( Edwin
doubt. (See discussion in Chapter 3, “Copyright
K. Wil iams & Co. v. Edwin K. Wil iams &
Registration.”) If anyone copies the form, you will
Co.-East, 542 F.2d 1053 (9th Cir. 1976));
be able to sue for copyright infringement. But be
and an answer sheet for a standard multiple- aware that a judge might decide that your form was not entitled to copyright protection after al .
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 123
Government Works
not apply to works by state and local
government employees; those works may be
Government edicts such as judicial
protected by copyright. For example, a state
opinions, legislation, public ordinances,
tax pamphlet or booklet on air pollution or
administrative rulings, and similar official
water conservation published by a city or
legal documents are all in the public
county may be protected.
domain. This rule applies to all levels of
government—local, state, and federal—and
even includes foreign government edicts.
Works in Which Copyright Protection
Has Expired or Was Never Obtained
Works by Federal Grantees
The public domain also includes works
whose copyright has expired and some
Works created for the federal government by
works published without a copyright notice.
independent contractors—that is, persons
who are neither U.S. government officers nor
Works whose copyright has expired
employees—can be protected by copyright.
Copyright protection does not last forever.
However, the government may require
When a work’s copyright protection expires
these persons to sign work-made-for-hire
it enters the public domain and is freely
agreements as a condition of receiving federal
available to anyone. All works published
money. In this event, the U.S. government, not
in the United States before 1923 are in the
the individual who actual y wrote the work,
public domain. So are many works published
would be considered the author of the work;
during 1923–1963 for which the copyright
this would mean that the work would be
owner failed to renew the copyright. See the
in the public domain. See Chapter 7, “Initial
detailed discussion of copyright duration and
Copyright Ownership,” for detailed discussion
renewal in Chapter 9, “Copyright Duration.”
of work-made-for-hire agreements.
Works published without a copyright notice
Other types of works created by U.S.
Works published before March 1, 1989
government officers and employees as part
without a valid copyright notice may also
of their jobs are also in the public domain.
be in the public domain. However, you can
This includes, for example, everything
never assume that a pre-1989 work that
published by the U.S. Printing Office,
lacks a valid notice is in the public domain.
IRS, Copyright Office, and Patent and
This is because there are several exceptions
Trademark Office, and all the president’s
to the notice requirement that may have
official speeches. But this rule does
saved the work from entering the public
124 | THE COPYRIGHT HANDBOOK
domain. These are discussed in detail in
officers of the 41st Precinct will continue to
Chapter 4. Because of these exceptions, it
fight a rear-guard action against lawlessness
can be very difficult—sometimes impossible with very limited success. The book ends
—to determine whether a pre-1989 work
with her transfer to another precinct.
that lacks a notice is in the public domain.
Unprotectable aspects of a work of fancy
Distinguishing Between
We’ll first examine those aspects of Sue’s
Protected Expression and
novel that are not protectable under the
Material in the Public Domain:
copyright law.
Putting It All Together
The idea to create a novel about police
officers in the South Bronx. The underlying
Now let’s review the information we have
idea to create a certain type of work is
just covered by looking at examples of
always in the public domain. Thus, the fact
protectable and public domain elements in
that other authors have written many novels
works of fancy and factual works. Works
about police officers (including some set in
of fancy include novels, short stories, plays, the Bronx) does not preclude Sue (or anyone screenplays, and poems. A factual work is
else) from writing another one.
a work of nonfiction, such as a biography,
The work’s theme. The theme of Sue’s
history, news story, how-to book, or
novel—the hopelessness of the situation
scientific treatise.
in the South Bronx and, by extension, all
urban America—is in the public domain.
What’s Protected in a Work of Fancy
Another novelist is free to express the same
theme in his or her own words. A theme
Sue writes a novel about police work set
is an unprotectable idea, not a protectable
in the South Bronx. Narrated by a rookie
expression.
cop named Walker, the novel begins on her
The work’s setting. A fictional work’s
first day at the 41st Precinct station house,
setting—that is, the time and place in
where she is shocked by its squalor. The book which the story occurs—is not protected by unfolds as a chronicle of police work and
copyright. Anyone can write a story set in the
daily life in a violent neighborhood. Several
41st Precinct of the Bronx. But the particular
chapters focus on specific topics, such as
words Sue used to describe this setting are
attacks on police officers. Throughout the
protectable. For example, Sue described one
book, Walker expresses compassion for those vacant lot as “fil ed with the refuse of stunted she considers the victims of the South Bronx, lives; a dead place, with no colors and no hopelessness regarding the prospects for basic smel s ... not even the garbage smel ed.” This improvement there, and a sense that the
sequence of words is protected.
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 125
Protection for Distinctive Characters
Some courts have held that distinctively
marks. State unfair competition and misap-
“delineated” original characters are protectable. propriation laws have also been used to try What this appears to mean is that no one can
to protect characters. For more information
copy the particular original combination and
on trademarks, see Trademark: Legal Care for
selection of qualities—such as personality
Your Business & Product Name, by Stephen
traits, physical attributes, and mode of dress
Fishman (Nolo).
—that make the character distinctive. An
When a fictional work enters the public
author’s selection and combination of such
domain, its characters do as well. However,
distinctive qualities (ideas) is deemed to
there can be complications when a character is
constitute protectable expression.
used in numerous works, some of which are in
Unfortunately, there are no uniform
the public domain and some of which are not.
standards for judging when a character is, or is
For example, an appeals court has ruled that
not, sufficiently distinctive to be protectable.
the four novels and 46 short stories containing
Copyright protection has been extended to
the characters Sherlock Holmes and Dr. Watson
such disparate characters as Tarzan, Amos ’n’
that were published by Arthur Conan Doyle
Andy, Hopalong Cassidy, and E.T., and denied
before January 1, 1923 are in the public domain
to Sam Spade and the Lone Ranger.
in the United States because their copyrights
Is Sam Spade any less distinctive than
have all expired. The characters of Holmes and
Hopalong Cassidy? The only general rule is
Watson as depicted in these novels and stories
that “the less developed the characters, the
may be freely used. However, Doyle published
less they can be copyrighted.” ( Nichols v.
ten Holmes stories after 1923 that are still under
Universal Pictures Corp., 45 F.2d 119 (2d Cir.
copyright in the U.S. The appeals court has held
1930).) In addition, the owners of some wel -
that that the elements first introduced in these
known characters have sought to protect
stories—such as the fact that Watson played
them under state and federal trademark laws. rugby for Blackheath, or had a second wife—
For example, Lois Lane, the Teenage Mutant
remain under copyright in the U.S. ( Klinger v.
Ninja Turtles, and Spiderman have all been
Conan Doyle Estate, Ltd. , 14-1128 (7th Cir 2014).)
federal y registered as trademarks or service
See also https://free-sherlock.com.
The work’s basic plot. A fictional work’s
of ideas. We know that ideas themselves are
plot—that is, the sequence of events by which not protected, but an author’s selection and Sue or any other author expresses his or her
arrangement of ideas does constitute protected
theme or idea—is a selection and arrangement expression to the extent that it’s original—
126 | THE COPYRIGHT HANDBOOK
that is, independently created. So, Sue’s plot
or details that necessarily fol ow from a
constitutes protectable expression only to the
fictional work’s given theme or setting. The
extent it was independently created by her.
French call these scènes à faire (that which
Plots are rarely protectable, because
must fol ow a certain situation). Sue’s novel
there are very few independently created
includes scenes involving drunks, prostitutes,
plots. One literary critic has noted that
stripped cars, rats, and a car chase. Any
“authors spin their plots from a relatively
novel about police work in the South Bronx,
small number of ‘basic situations,’ changing West Oakland, East Los Angeles, or any
characters, reversing roles, giving modern
other major city would likely include such
twists to classic themes.” ( The Thirty-Six
elements. Such predictable—or stock—story
Dramatic Situations, by George Polti (The
elements are all unprotectable ideas.
Writer, Inc.).) For example, the plot of the
However, to the extent they are original,
film The Dirty Dozen is basically a World
the particular words an author uses to describe
War II updating of Jason and the Argonauts; or narrate a scène à faire are protected, even and authors have recycled the time-tested
though the idea for the scene is not. Thus,
plot of boy gets girl, boy loses girl, boy gets although any author can write a police novel girl back over and over again throughout
that includes a scene involving a high-speed
the centuries. Naturally, these basic plots
car chase, he or she could not copy the words
are all in the public domain; otherwise, it
Sue used to describe the car chase in her novel.
would be very difficult, if not impossible,
The work’s stock characters. Similarly, there
for anyone to create a “new” work of fancy.
are many standard character types that have
Independently created variations or twists developed in fiction over time—for example,
on basic plots would constitute protected
the eccentric little old lady; the tal , silent,
expression. But there aren’t very many new
strong cowboy; the two-fisted, hard-drinking
plot twists, either. For example, can you
private detective; the street-wise, fast-talking
think of any variations on the boy meets
urban hustler. Since they are not original
girl scenario that haven’t been done before?
creations, these character types are not
/> The plot of Sue’s novel may be described
protectable; they are part of the stock of ideas
as follows: Idealistic young person joins
that all fiction writers may draw upon. For
urban police force, is assigned to inner
example, one of the characters in Sue’s novel
city, sees horrors of life there, and ends
is police Sergeant Jim McCarthy, a hard-
up disil usioned. It’s hard to see anything
drinking fourth-generation Irish cop who’s
original in this. There are doubtless hundreds seen it al . Such a sketchily drawn stock of other police stories with similar plots.
character, commonly found in police stories,
The work’s scenes and situations. There are
would not be protected. Any author of a
certain sequences of events, scenes, situations, police thril er is free to use such a character.
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 127
TIP
George Orwell’s 1984—“newspeak,” “I love
Never use a well-known character— Big Brother”—entered the public domain
either by name or detailed description—from
(and enriched our language) the moment
a copyrighted work without first consulting a
Orwell published them.
copyright attorney or disguising the character
The work’s literary devices. Finally, literary
to such an extent that it is not recognizable.
devices such as the story within a story,
Even if the character doesn’t seem sufficiently
flashbacks, the epistolary novel, prosodic
distinctive to you to merit protection, its creator forms, and rhetorical devices such as and publisher may feel quite differently and sue
alliteration are all unprotectable ideas.
you for copyright infringement.
Protected expression in a work of fancy
The work’s facts. Sue’s novel is extremely
well researched. She describes what
You may be wondering just what is
police officers do and how they do it in
protected by copyright law in a work of
great detail, and realistically catalogs the
fancy. All that is protected is the author’s
conditions of life in the South Bronx.
original expression. This includes, of
Indeed, her novel is a better source of
course, the particular sequence of words
factual information on the South Bronx
Sue has chosen to tell her story. But her
than many guidebooks or sociological
protected expression does not end there.
studies. Of course, facts are not protectable, To create her novel, Sue had to select,
The Copyright Handbook Page 23