I was looking for ways to discover color palettes (color schemes) based on photos, and found a few sites. They didn't really produce what I wanted, but they did lead me to a the ColourLovers site, which I like. There was something surprising: Creative Commons licenses for the color palettes.

I freaked out.

I didn't think color combinations should be a protected work. If they were, then all works using those colors could be considered derivative works, and then you could be sued for copyright infringement by the author of the color scheme. This would be a huge problem for artists, photographers, designers, cinematographers, and fashion designers.

It also freaked me out because this was a negative use of Creative Commons (CC). CC is a "sharing" copyright license. It's a contract that allows you to use a work, if you follow some simple rules about attribution. While the sharing part is good, there's a "dark side" to CC. CC can be used to expand the areas where copyright can apply.

This appeared to be a use of CC that wasn't in the spirit of CC.

So I searched for answers. The short list of answers is:

* Colors cannot be copyrighted.
* Colors can be considered part of a trademark.
* Color combinations might be protected by trademark.

This info was found on legal sites like Avvo and a site called Colormatters.

Colourlovers also answered the question like this:

"You can't really protect or copyright the usage of a combination of colors in new works. Ie, if you take a color palette and then draw an illustration using those colors. But, what is protected is the arrangement of those colors into the rectangular shape that they are on COLOURlovers displayed along with their names. This is treated like a picture or work of art and can be protected... ie, you can't just scrape a bunch of palettes and put them as they are displayed here in a book you sell."

I think they are trying to worm out of what they did. Still, it does answer the question about palettes: you can use them freely, but you can't copy the rectangles from their website and use them without attribution. This latter situation happens when a different site syndicates the Colourlovers content and then presents a list of palettes for the user to pick. It's a uniquely contemporary problem, when there are many color schemes in a database, created by the individual labor of thousands of people, and a machine selects a subset to present to another person.

Even the tinest amount of labor produces intellectual property, and most of the process from production to use of the product can be tracked by computers.

References:

http://www.colourlovers.com/faq/18/How_can_you_copyright_a_color_palette

http://www.colormatters.com/color-and-marketing/color-and-trademarks

http://www.colormatters.com/color-and-marketing/color-branding-legal-rights

http://www.avvo.com/legal-answers/are-color-combinations-copyrighted--1202589.html