Five Things You Can't Copyright

No Matter How Much You Wish You Could

Or how much you think you ought to be able to (copyright them). Copyright does not work on hopes and dreams! I’ve talked about copyright in Shelf Life a lot of times before and today we’re doing it again. In brief, I’ll share a list of five things you cannot copyright—there’s no form you can fill, no agency you can petition, no manager you can ask to speak to, to get these five things copyrighted. You just can’t.

This is in response to the (ongoing) saga of user AuthorLMDavis on Twitter (X), the author of a self-published novel, Nova’s Playlist. LMDavis publicly (on X) accused another author, JustMarveWrites (author of His Dark Reflection and forthcoming novel Firstborn of the Sun) of copyright infringement. To the best of anyone’s ability to tell from AuthorLMDavis’s tweets (sorry, her posts), the accusation was based on the fact that both Nova’s Playlist’s and Firstborn of the Sun’s protagonists have the ability to “wield the power of sun.”

If it were possible to copyright a character who wields the power of the sun, there’d be a line of creators lining up to sue for infringement all the way back to the earliest recorded cultures, which all had a god or goddess who did exactly that. There are plenty of modern-day characters who “wield the power of the sun”—including, notably, Superman.

Anyway, it turned into a whole mess on the application formerly known as bird emoji and you can read the whole saga in this thread if you wish. Personally, I need to get off this app. It’s the anniversary of the Nutty Putty Cave incident or something. Elon Musk stop showing me nightmare fuel challenge, difficulty level impossible.

Also, in addition to all of the above, I just enjoy making lists of five things. Five is such a nice number. So even and so odd at the same time. Without further ado, in honor of AuthorLMDavis who could use a lesson in copyright law, here are five things you cannot copyright.

An Idea or Concept

No matter how good you think your idea is, or how unique, or how original—you just can’t copyright it. Copyright applies to “original works of authorship fixed in any tangible medium of expression,” which includes literary works (among many others). A literary work refers, specifically, to any work “expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” Fixed means that a a work is set down “in a tangible medium of expression”—written down or record in some other way.

Importantly, the copyright law of the United States expressly adds: “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.”

This means you can’t copyright your idea or concept. If you write it into a story—such as a novel, novella, play, screenplay, or short story—the story itself as a literary work of authorship is copyrighted. However, even after fixing it in writing, your idea is still not copyrighted. The story itself cannot be plagiarized and reused by another author—but concepts from it are fair game.

I can’t write a story about Harry, Ron, and Hermione getting up to hijinks at Hogwarts because that’s copyrighted to JK Rowling. I can totally write about any other three kids getting up to hijinks at any other magical school. JK Rowling holds copyright to neither children, nor magical schools, nor hijinks. Those are concepts that anyone may use for anything.

Your Book’s Title

Titles can’t be copyrighted—that is, “copyright does not protect names, titles, slogans, or short phrases.” Some titles may be protected under a trademark (more on that later), but for the most part there is no protection for titles.

For instance: I set myself the brief, ten-second task of thinking up a short phrase from the lexicon that would make a fine book title and came up with “the witching hour,” which refers to the time of night when supernatural activity is at its peak. So then I looked up “the witching hour” on Amazon.

The first result is the novel of that name by Anne Rice—probably the best-known and most-popular one. Then I found more novels by the same name: The Witching Hour by Ashley Skolrud, by Christine Pope, by Anna Bradley, and more. I also found as many again under the title Witching Hour (sans “the”). I also found some nonfiction (The Witching Hour: Spells, Powders, Formulas, and Witchy Techniques That Work) and even a coloring book. There seems to be a Nora Roberts story The Witching Hour, but it’s only available bundled with another story and not as a standalone title. While trying to figure this out, I also found The Witching Hour by Derek Roberts, who I assume is no relation. Amazon pulled up 418 titles in total in response to this search.

Believe me when I say that if Anne Rice and Nora Roberts aren’t trying to protect something under copyright law, it cannot be protected under copyright law.

So—why no books called Harry Potter and the Et Cetera Et Cetera except those by JK Rowling? Because “Harry Potter” is trademarked.

Work Copyrighted to Someone Else

Or, a work in the public domain. It should go without saying that you can’t copyright work to which someone else owns the copyright—any work may be copyrighted only once. This isn’t to say that you can’t copyright work written by someone else—you can, if the writer created the work as a work-for-hire (eg, if you used a ghostwriter) or if the original copyright owner transferred copyright to you. For the most part, though, given that literary works are innately copyrighted to their author from the moment they are set down in a fixed form, anything someone else wrote is copyrighted to them and cannot be copyrighted to you or anyone else. 

Even if you file the form TX with the copyright office before they do. The form TX creates a record of a copyright with the copyright office, which is important if you ever wish to sue for infringement in court. However, the copyright office does not confer copyrights—it only registers those rights that writers already have.

Don’t be Demetrious Polychron, who self-published some Lord of the Rings fanfiction on Amazon and then attempted to sue the Tolkien Estate and Jeff Bezos for infringing his (Polychron’s) copyright when they made The Rings of Power.

You also cannot copyright a work in the public domain. Works enter the public domain when their copyright expires, meaning no one holds the copyright to them any longer. This does not mean that an enterprising soul can swoop in and snag that copyright.

If a work is in the public domain, then elements of it may be reused by other writers in their own work. For instance, all works by Sir Arthur Conan Doyle about Sherlock Holmes are now in the public domain, meaning other writers can now write and publish stories about Sherlock Holmes. I could write a story about Sherlock Holmes and my dog Maxine solving the mystery of the missing dog food (spoiler alert, Maxine ate it), and publish it, and sell it for money. I would hold the copyright to that new story, though not to the Sherlock Holmes character.

It also means that anyone may take an existing work by Sir Arthur Conan Doyle about Sherlock Holmes and republish and sell it. So for instance I could take the text of The Hound of the Baskervilles, typeset it, add a new introduction, send it off to the printing press, sell copies, and collect the proceeds—as long as I do not attempt to claim that I wrote it. I would need to attribute the text to the original author. I would not own the copyright to the new book, except to the introduction that I wrote myself. The original work remains in the public domain.

A Slogan

Just as your title cannot be copyrighted, and your character’s name cannot be copyrighted but may be eligible for trademarking, neither can a slogan be copyrighted—but you may be able to get a trademark for it. A trademark is different than a copyright, but is similar in that it protects valuable intellectual property. While copyright cannot be used to protect “names, titles, slogans, or short phrases,” trademarks can protect “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.” This protection can also apply to short phrases, such as the famous “Look, up in the sky, it’s a bird, it’s a plane”—trademarked for a period of ten years by DC Comics, now expired.

The key is “goods and services.” Registering or owning a trademark for something doesn’t mean you own the exclusive right to that thing (that word, phrase, symbol, et cetera)—it only means you own the use of that thing in the context of the good or service you offer to consumers. If you sell widgets under the trademark Jane’s Weird Widgets, no one else can sell widgets under the name Jane’s Weird Widgets. Someone could some along with a chocolate chip cookies business and sell Jane’s Weird Chocolate Chip Cookies and that would not violate your trademark; because your trademark for the name “Jane’s Weird Widgets” only applies to selling widgets.

Before anyone asks, no—you cannot trademark your book’s title in the context of selling your goods, “books,” to consumers. Book titles are not protected this way.

A Recipe

No matter how original and unique the Jane’s Weird Chocolate Chip Cookies recipe is, they can’t copyright it. Copyright law does not protect recipes. According to the copyright office: “A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable.” The ingredients and the directions are specifically excluded from what may be copyrighted. However—if those elements are accompanied by “substantial literary expression,” such as a creative description of the resulting dish or a detailed explanation for specific activities pursuant to making the dish, those may be copyrightable. Any original photographs or drawings that accompany the recipe would certainly be copyrightable (“artistic works” are protected the same way as “literary works”).

A recipe, as a process for creating something, would be more likely to fall under the protection of a patent. Food technology and the processes related to food technology, for instance, are patentable. However, a process has to be novel to be eligible for a patent. Meaning it has to be new, something that doesn’t already exist. If anyone else has already patented the recipe or if someone else has already published the recipe—like if it’s on a food blog somewhere—then it’s not novel and, thus, not patentable. 

I can tell you confidently that every variation on chocolate chip cookies that anyone would actually want to eat probably already exists. Unless Jane’s Weird is putting frog legs in them or something, they can’t protect the recipe with a patent.

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