Forms Draw a Blank on Copyright Protection

No Copyright


Copyright protects the original expression of an idea, but not the idea itself as copyright protection extends only to “original works of authorship.” That is why we can have lots of books, films, TV movies, songs, and more regarding the life of Marilyn Monroe of varying quality.  The threshold of what is an original expression is low, but it does exist.  One example of where that threshold can be just that little bit too high is forms.

Blank forms that are designed to record rather than to convey information are not protected by copyright.  These types of forms are considered to not contain the required minimum amount of original expression needed to obtain a registered copyright.

To be protected by copyright, a work must contain a certain minimum amount of original literary, pictorial, or musical expression.  Forms that are more blank spaces with perfunctory headings are not going to be able to jump over that threshold.

In addition, copyright does not extend to names, titles, or short phrases like those often found in column headings and simple checklists. The format, layout, and typography of a work are also not protected as not being an expression of an idea.

Finally, works consisting entirely of information that is common property containing no original authorship. Examples include standard calendars, height and weight charts, tape measures, rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.  That being said, once you start using judgment to select and omit information to present something new, it may be protected.  For example, in Kregos v. Associated Press, the court found the plaintiff’s a form comprised of nine statistics about a pitcher’s performance copyrightable because Kregos’ selection of those specific statistics from the seemingly hundreds of statistics describing a pitcher’s performance could be original.

Finally, only the author’s actual expression of the idea is protected by copyright. The baseline ideas, plans, methods, or systems described in a work are not protected by copyright.  Protected methods and systems is the job of patents and trade secrets.

All is not lost. Any portion of the documents that is an original literary or pictorial work is copyrightable even when it is published with a blank form, provided that the requirements of copyright law are met for that portion. Of course, copyright protection in such a case would extend only to the original literary or pictorial expression and not to the blank form or other unprotected aspects of the work. For example, copyright protection for original explanation of terms or phrases published with a blank form would extend only to the explanations, not to the blank form itself.

So if copyright protection cannot be secured for an idea or principle behind a blank form or a similar work or for any of the methods or systems involved in it, where does that leave you?  First, see what can be protected via copyright as being original.  Second, explore patent and trade secret for the baseline process.  And finally, recognize that it is unlikely the form that is bringing in the customer.  Put your focus on that (hint: It is often the customer service helping to fill out the form!).

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