Copyrightability

Spell check will tell you there is no such word. Courts tend to make up words to fit the situation. This is one. Although not a "word", it is addressed by the courts.

Some things cannot be copyrighted. The US Copyright Office lists a few in Circular #34. The US Copyright Office also lists them in Circular #1. Originality determines copyrights. If a picture of a plate of food cannot be copyrighted (see blow), then pictures of products cannot be copyrighted. A design on clothing must be able to stand alone as art to be copyrighted (see below), thus denying protection for copyrighted clothing, etc. Useful articles are not copyrightable. Product descriptions are often claimed to be copyright protected when they are not.

Low-life corporate lawyers who are attempting to control the secondary market for their clients often attempt to use copyright law to interfere with perfectly legitimate sales of merchandise. We refer to these lawyers as bottom feeders because they are lying to create an illegal position of advantage for their clients. Favorite lies include telling people that they cannot use a picture of the product (because it's copyrighted) or describe the contents or specifications (because they are copyrighted). Bottom feeders aren't interested in the facts but only in generating billable hours.

Here are some articles and short outlines of court cases about Copyrightability:

• Copyright Protection For Short Phrases, By Richard Stim, J.D., Stanford School of Law, article about the limits of copyright protect and short phrases.

• Barbour v. Head, 178 F. Supp. 2d 758 (S.D. Tex. 2001) Recipes are copyrightable.

• Publications Intern., Ltd. v. Meredith Corp., 88 F. 3d 473 (7th Circuit 1996), Recipes are not copyrightable.

• Bridgeman Art Library, LTD. v. COREL Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) Photographs copyrightable but unless they have originality they are suspect.

• Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp. 2d 663 (S.D.N.Y. 2001) Flag lacked any original expression and was therefore not protected.

• Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970 (6th Cir. 1983). Toys are copyrightable as non-useful items.

• HASBRO Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189 (2nd Cir. 1985). Copyrightability of designs in the public domain.

• Morris v. Buffalo Chips Bootery, Inc., 160 F. Supp. 2d 718 (S.D.N.Y. 2001) Clothing are uncopyrightable useful articles.

• Oriental Art Printing, Inc. v. Goldstar Printing Corp, 175 F. Supp. 2d 542 (S.D.N.Y.2001) Photographs were not copyrightable under doctrine of scènes à faire.

• Protection of Website Content - The Limits of Copyright, posting by Christopher Barnett, December 2007 copyright-based claim of website content infringement discussed in Allen v. Ghoulish Gallery.

• Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003). Sculptures of jellyfish are not protectable.

• Superior Form Bldrs. v. Dan Chase Taxidermy, 74 F.3d 488 (4th Cir. 1996). Animal mannequins used by taxidermists to mount animal skins are copyrightable.

• Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir. 1994). Animal-styled children's duffle bags are copyrightable.