Key Takeaways

  • Copyright protects original works fixed in a tangible medium, but not every published work qualifies for protection.
  • Works in the public domain, such as U.S. government publications or expired copyrights, are not copyrighted.
  • Facts, ideas, and short phrases cannot be copyrighted, though their creative expression can.
  • Common reference materials (e.g., calendars, conversion charts) and blank forms are also excluded from copyright protection.
  • Copyright protection requires originality; purely functional or utilitarian elements, like methods or procedures, are not covered.
  • Always verify the copyright status of published works before using them, as some may have entered the public domain or never qualified for protection.

What is Copyright?

Copyright is the legal protection by the United States Title 17 legal code for “original works of authorship.” Such works protected by copyright law include literary, dramatic, musical, artistic, and certain other work of that nature. Copyright applies to published and unpublished works, despite some common misconceptions.

What Does Copyright Protection Provide?

Whoever owns the copyright for a work of the type listed above has exclusive rights to that work. They can:

  • Make copies
  • Create new work based on the protected work
  • Distribute copies of the work either by selling it or assigning ownership to someone else
  • Perform the work publicly like in the case the work is a musical, play, movie, etc.
  • Display the work publicly if it’s a photo, sculpture, etc., including images from a movie
  • Perform the work in public if it’s an audio piece

What is copyright infringement?

Copyright infringement is when someone who doesn’t own the copyright uses the material in any of the ways mentioned above. Still, copyright isn’t unlimited.

Categories Protected by Copyright

Copyright only protects “original works of authorship that are fixed in a tangible form of expression.” These kinds of copyrightable works include literature; music, including lyrics; dramatic works, including any accompanying music; choreography; photos, digital graphics, and sculptures; movies and other audiovisual productions; sound recordings; and architectural works.

Categories Not Protected by Copyright

Anything that is not in a tangible form, i.e., written down, notated or recorded, or any improvisational performances, including speeches, are not covered by copyright. Additionally:

  • Titles
  • Names
  • Short phrases
  • Slogans
  • Familiar symbols or designs
  • Variations of typography, lettering, or coloring
  • Ingredients or contents of a recipe

are also not covered by copyright.

Additionally, things like calendars, charts for height/weight, rules, and other things of that nature that are common in public materials and sources are not covered by copyright. They are much too common for any one person to own. It would be like copyrighting the word “We.”

The government is also prohibited from copyrighting its work since it technically belongs to the people. As such, all works by the U.S. Government are placed directly into the public domain.

Unfortunately, fashion designers are not able to have copyrights on their work. Their designs are not considered to be applicable to the current copyright laws even though architectural designs are protected.

Public Domain and Expired Copyrights

A work enters the public domain when its copyright protection expires or was never applicable. Once in the public domain, the work is free for anyone to copy, share, or adapt without permission. This includes:

  • Expired copyrights: Most works published before 1929 are now in the public domain.
  • Voluntarily dedicated works: Some creators release their work under licenses like Creative Commons Zero (CC0) to allow unrestricted use.
  • Unpublished works by authors deceased long ago: If an author died more than 70 years ago and their unpublished work has since been released, it is typically in the public domain.

It’s essential to distinguish between the public domain and openly licensed works. Public domain works have no rights attached, while openly licensed works (such as those under Creative Commons licenses) still carry specific use conditions.

Additional Examples of Works Not Covered by Copyright

Certain published works fall outside the scope of copyright because they lack originality or creative expression. Examples include:

  • Facts and ideas: Copyright protects the expression of ideas but not the ideas themselves. For instance, the fact that “water boils at 100°C” cannot be copyrighted, though an educational article explaining it in a creative way can.
  • Systems, procedures, and methods: Recipes that only list ingredients, or business procedures and formulas, are not protected, though a descriptive cookbook or manual might be.
  • Blank forms and templates: Tax forms, surveys, or questionnaires that simply collect information are excluded from protection because they lack authorship.
  • Common reference materials: Standard calendars, height-weight charts, and multiplication tables are considered public property.
  • Works in the public domain: These include works for which copyright has expired or was never claimed. For example, Shakespeare’s plays and Beethoven’s symphonies are public domain and free to use.
  • Government publications: U.S. federal government works automatically enter the public domain upon publication, allowing anyone to reproduce or adapt them freely.

Copyright Claims

If you work for a company, then your employer and not you are considered to be the author. Because you have been hired to do that work, the company owns it.

If you create something with another or other people, then all creators are considered co-owners of the copyright. You are allowed to make an agreement, however, granting copyright to one of you.

Why Some Works Lose Copyright Protection

Even if a work was once copyrighted, protection can be lost if:

  • The copyright term expires (typically 70 years after the author’s death for individual works).
  • The creator fails to comply with earlier registration or renewal requirements for older works.
  • The work was never eligible—for instance, it was purely factual or functional.
  • The creator explicitly waives rights, placing the work in the public domain.

Losing copyright protection means the work becomes freely usable by the public without permission or royalties.

Does a work have to be published to be copyrighted?

Originally, a work had to be published to be granted copyright protection. However, that is no longer the case. When a work is “fixed in a tangible medium of expression,” it is considered to be protected.

When referring to publication, this specifically means that the work has been distributed to the public by either sale or other transfer of ownership. Handing out copies of your work to a group of people to further disburse the information is considered to be publication. When it comes to performances, however, or choreography, simply performing in public does not constitute publication.

How to Determine if a Published Work Is Copyrighted

When assessing whether a published work is copyrighted, consider:

  1. Date of publication: Works published before 1929 are generally public domain.
  2. Authorship: U.S. government publications are never copyrighted.
  3. Copyright notice: Modern works are automatically protected, but older works may lack the required notice.
  4. Creative expression: Functional, factual, or formulaic works are likely unprotected.
  5. Licensing terms: Some creators explicitly release their work for public use under Creative Commons or similar licenses.

When in doubt, consult the U.S. Copyright Office records or seek professional guidance to confirm a work’s copyright status. You can find a qualified intellectual property attorney through UpCounsel for assistance.

Copyright Notice

The copyright symbol should be used by the person who holds the copyright. There is no approval needed to use the symbol, since works are automatically copyrighted. For example, a website should always have the copyright symbol and the year in the footer.

Still, you don’t have to use the copyright symbol in order to be protected. We still recommend using it, though, to inform the public that the work is protected by copyright. It can also identify the copyright owner and show when the work was first published. It does give additional weight to a copyright claim in case the issue goes to court. So be sure to always include the copyright just in case.

Frequently Asked Questions

  1. Are all published works automatically copyrighted?
    Yes, if they are original and fixed in a tangible medium. However, works that are purely factual, procedural, or created by the U.S. government are not copyrighted.
  2. Can I use old books or artwork freely?
    You can use them if their copyright has expired and they are in the public domain. For instance, most works published before 1929 can be freely used.
  3. Is a social media post copyrighted?
    Yes—if it demonstrates originality, such as creative writing or photography. Simple phrases or factual updates are not protected.
  4. Are government websites copyrighted?
    No, materials produced by the U.S. federal government are public domain. However, state or local government works may have separate rules.
  5. What’s the difference between public domain and Creative Commons?
    Public domain means no rights apply. Creative Commons licenses allow use under specific conditions set by the creator, such as attribution or non-commercial use.

If you need help with copyrights, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.