My "Unprotectable" title today comes with the earworm "Unforgettable" by Nat King Cole. One might or might not be surprised at what can and cannot be protected by copyright.
Gravestones for instance. Also, short phrases and advertising copy. Most writers are aware of the saying, "You cannot copyright a title"...although there are exceptions. Publishers have been able to obtain limited copyright protection for the title of a series of books.
One cannot copyright "R.I.P", for instance, on a gravestone, because there is no originality about it, and it has been in general use on gravestones and in obituaries for generations. However, authors have used R.I.P. and also rip, as in Kris Johnston's R.I.P. series, Kelley Armstrong's Rip Through Time series, or the Rip Rap series. There are many other examples.
Factual information, such as the name of the person and their dates of birth and death, cannot be copyrighted, nor can traditional and wildly popular phrases such as "beloved mother"... which one would hope is accurate, factual information.
Quotations from the Bible or from philosophers are out of copyright, however, if they are carved in an original font by a sculptor, perhaps the lettering is artistic and unique.
Brian Murphy (partner at Frankfurt Kurnit Klein & Selz) wrote highly readable blog on whether or not one can copyright an advertising slogan or short phrase with particular reference to a recent copyright lawsuit where one party published a very, very short book (as I recall, it was about three pages long) which contained the sort of information one might find on the packaging of a product or the instruction manual that might come with the product.
Please read Mr. Murphy's blog for the details, and check out the useful chart--I think produced by the court--listing short (and not-so-short) phrases and the reasons they are unprotectable.
As, he explains, the very short book in question was not copyrightable for at least five reasons, which I quote with citations removed for brevity:
1. Originality. Copyright protection only applies to works that are "original," - i.e., "the work [must be] independently created by the author (as opposed to copied from other works), and [must] possesses at least some minimal degree of creativity.”
2. Words and Short Phrases. The Copyright Office's regulations provide that “words and short phrases such as names, titles, and slogans” are not subject to copyright because they contain a de minimis amount of authorship.
3.Facts and Ideas. Copyright law does not protect facts; it protects only an author's original expression of those facts. See 17 U.S.C. § 102 (copyright protection does not “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”);
4. Merger Doctrine. Where an idea can be expressed in so few ways such that “protection of the expression would effectively accord protection to the idea itself, ... the idea 'merges' with the expression, and the expression is deemed unprotectable."
5. Scènes à Faire. Copyright protection does not extend to “expressions that are standard, stock or common to a particular subject matter or are dictated by external factors.”Circling back to the cemetary, the CopyrightAlliance has an excellent, Halloween-themed article devoted to the copyright protection available for gravestones, and also what is not available.
https://copyrightalliance.org/does-copyright-law-protect-gravestones/
Gravestones can be protected as pictorial, graphic, or sculptural works.
The Copyright Act, 17 U.S.C. § 101, defines “pictorial, graphic, and sculptural works” as “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” Since gravestones are three-dimensional sculptures, they fall within the scope of copyright-protected works. In addition, two-dimensional elements on a gravestone, such as carvings, images, engravings, and symbols, may also be protectable as artistic elements.
Vincent Melara, for the copyrightalliance.org, explains that The U.S. Copyright Office’s Compendium gives examples to shed light on what is and isn’t protectable under copyright law.
A length of wood that has been bleached and scoured by nature, or a random pile of stones would not be protectable, a cairn might or might not be if it could be seen as a sculpture (involving more than minimal creativity) and not merely a way-marker or grave marker; a photograph of stacked stones might be protectable... photographs usually are copyrightable because the photographer choses aspects of light and shadow, the angle from which to capture the work, focus, background etc.
By the way, the act of stacking stones may be trendy, but it is not necessarily good for the environment or for the native wildlife that might have made a home under an undisturbed stone.
Much comes down to the amount of creativity and originality in the gravestone or headstone. A plain cross, or an etching of praying hands in the manner of Albrecht Durer might not be considered original, and might fall under the “scènes à faire” doctrine.
On the other hand, if it weren't so old, the grave monument of Frédéric Chopin in the Père Lachaise cemetary in Paris might have once been copyrightable. There is a statue that could have been a separate work of art (sculpture) in its own right.
For creators, it is free to join the copyright alliance. Just visit the website and sign up.
All the best, and Happy Thanksgiving!
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