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Lately I've been writing a lot of specifications of (MIDI-ish) music formats for old commercial video games based on my own research (I have no access to anything by the games' authors). To what extent are specifications of formats you did not create copyrightable? Most of the material in the specs are my own writing, though they do include some tables from the game (e.g. track location tables, envelopes, etc.) and a bit of disassembly (to show what code needs to be modified by modders to move the tables to different locations), and I am writing about a format I did not invent and (if applicable) do not hold any copyright or patents on it. Am I able to put a "Copyright Justin Olbrantz" on these specifications, or are they in part or in whole uncopyrightable?

One such spec is here.

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Such a document is protected by copyright the moment it is fixed in a tangible form (which includes on paper and in a computer file). Your creative expression would be protected. But the facts of what the format consists of would not be protected -- copyright never protects facts.

You may lawfully place a copyright notice on it, but such a notice will not grant you any rights to control use of the facts disclosed in the document, and would not even if you held copyright to the game or the format. Indeed in the modem era, a copyright notice has very little legal effect at any time on any document created after 1989.

If the document is devoted entirely to describing the contents of the file format, there may be very little that is protected beyond the exact wording. If there is essentially only one way or a very few ways to accurately describe the facts, even the exact wording may not be protected.

By the way, if you are going to use a copyright notice, the standard notice lists the year as well as the copyright holder (who is often but not always the author).

Example:

Copyright 2022 Chris Smith

Legal Effect of a Copyright Notice

In US law, 17 USC 401(a) provides that:

(a) General Provisions.—Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. [emphasis added]

Subsection (b) which I will not quote, specifies the form of the notice. Subsection (c) specifies how such a notice should be positioned. And subsection (d) goes to the legal effect of the notice. Subsection (d) reads:

(d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(2).

Since the 1989 effective date of the Berne Convention Implementation Act of 1988 (BCIA), the provisions of 17 USC 401(d) quoted above, are the only legal effect, in US law, of the omission of a copyright notice on a work protected by copyright. (The BCIA amended US copyright law.) Prior to that date, the omission of such a notice could cause total loss of copyright, although there were limited exceptions specified in 17 USC 405 and 406. Section 406 also indicates the legal effect of an incorrect notice on the copyright of the name and date specified in a notice on works published before the date of the BCIA. On works first published since that date, all such legal effects have ceased to operate.

In countries other than the US, that have adhered to the Berne Copyright Convention, or the WTO TRIPS agreement, no notice or other formality is required to ensure copyright protection. This includes almost every country in the world, and includes all countries with a significant publishing industry.

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  • May you elaborate on"copyright notice has very little legal effect at any time on any document created after 1989"?
    – abukaj
    Nov 16, 2022 at 9:22
  • @abukaj See the newly added section of the answer on this topic. Nov 16, 2022 at 19:14

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