Copyrights protect creative works. A copyright gives the owner of the copyright exclusive rights to reproduce, distribute, perform, or display the copyrighted work. A copyright also gives the owner of the copyright the exclusive rights to create a derivative work. A derivative work is a work that is based on the copyrighted work.

What Type of Things May be Copyrighted?

Creative works can be copyrighted. The expression of ideas can be copyrighted.

A copyrighted work may, however, contain both protected and unprotected portions. The unprotected portion or portions are not entitled to copyright protection and may be copied by others. Unprotected matter may include: portions of work not original to the author; work that is in the public domain; an idea, concept, actual event, principle, or method expressed or described in a work, common computer programming techniques or other functional aspects of a computer program; and others.

The Expression of Ideas, and Not the Ideas Themselves, May be Copyrighted

While the expression of ideas can be copyrighted, ideas themselves cannot be copyrighted. Ideas are unprotected matter. The expression of the idea is protected matter.

For example, an author might write about a couple meeting, falling in love, and facing disapproval from others based on the couple having different religious beliefs. This author’s creative expression of the storyline and characters is protected matter. However, this author does not have an exclusive right to the idea, concept, or principle of this storyline.

The more detailed portions of a fictional work are more likely to be protected matter than the more general portions. A recount of factual events will receive less copyright protection than fictional stories. The means of expression of facts and events, for example in a non-fiction book, are protected by copyright. However, another author is permitted to recount, in another way, the same facts and events.

Merging Protected and Unprotected Matter

However, when protected matter and unprotected matter both exist in a work, there is a possibility that the merger doctrine will apply. The merger doctrine allows an author to copy protected matter to the extent necessary if there is only one, or a few, ways of describing or depicting the unprotected matter. Otherwise it would be difficult or impossible to express the unprotected matter.

For example, a golden retriever is golden, furry, has four legs, two eyes, a long snout with nose and mouth, ears that are positioned in a certain way, and a tail with a certain amount of curl. It would be nearly impossible to depict a golden retriever without these characteristics. Therefore, similarities among depictions of golden retriever drawings or statues, under the merger doctrine, cannot be the basis for finding infringement on the copyright. The expressive protected matter merges with the unprotected matter. Otherwise copyright law would prohibit any drawings or statues of golden retrievers.