Take Away Points
1. theories of copyright law;
2. similarities between copyright and patent;
3. source of copyright law;
4. categories of copyrightable works;
5. requirements for copyright protection;
6. fixation;
7. originality;
8. Bleistein nondiscrimination principle;
9. Compilation requirements and limit on protection; and
10. sweat of the brow.
U.S. Constitution, Art. I, § 8, cl. 8
The Congress shall have Power … To promote the Progress of Science and the useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
17 U.S.C. § 102(a)
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
17 U.S.C. § 101
(def. of “including”)- The terms “including” and “such as” are illustrative and not limitative.
17 U.S.C. § 101
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under
the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or
both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made
simultaneously with its transmission
Holmes’ Standard for Originality
“Personality always contains something unique … a very modest grade of art has in it something
irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in
the words of the act.”
17 U.S.C. § 103(a)
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but
protection for a work employing preexisting material in which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
17 U.S.C. § 101 (def. of “compilation”)
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of
authorship. The term “compilation” includes collective works.
17 U.S.C. § 101 (def. of “collective work”)
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works in themselves, are assembled into a collective
whole.
Compilations v. Collective Works
Compilations
Collective
Works
17 U.S.C. § 103(b)
The copyright in a compilation or derivative work extends only to the material contributed by the author of such
work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the
scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Protection for Compilations
 Collection or assembly of preexisting materials, facts or data;
 Selection, coordination or arrangement;
 The creation thereby of an original work of authorship.
Feist Pub. v. Rural Telephone
Originality
 independently created AND
 possesses a minimal degree of creativity
Take Away Points
1. idea/expression distinction and purpose;
2. merger doctrine;
3. PGS works and useful articles;
4. separability exception; and
5. struggles with computer programs and functionality
17 U.S.C. § 102(b)
In no case does copyright protection for an original work of authorship 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.
17 U.S.C. § 102(a)
Works of authorship include the following categories:
1. literary works
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings; and
8. architectural work
17 U.S.C. § 101
“Pictorial, graphic, and sculptural works” include 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. Such works shall include works of artistic craftsmanship insofar as their
form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this
section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article.
17 U.S.C. § 101
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance
of the article or to convey information.
Mazer v. Stein
Useful Articles


if a pictorial, graphic or sculptural work is a useful article,
defined as an article having an intrinsic utilitarian function that is not merely to portray the appearance
of the article or to convey information,
o then it can only be copyrighted if it contains features that can be identified separately from,
and are capable of existing independently of, the utilitarian aspects of the article
Star Athletica v. Varsity Brands
Two-part test:
1.
2.
separate identification: look at useful article and spot some two- or three-dimensional element that
appears to have pictorial, graphic, or sculptural qualities.
– Easy to satisfy
independent existence: separately identified feature has the capacity to exist apart from the utilitarian
aspects of the article.
– More difficult to satisfy
– (i.e. eligible if originally fixed in a medium other than useful article before applied to a useful
article
17 U.S.C. § 101 (def. of “literary works”)
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or
numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals,
manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
Take Away Points
1. idea/expression distinction and purpose;
2. merger doctrine;
3. PGS works and useful articles;
4. separability exception; and
5. struggles with computer programs and functionality.