Introduction
A. Copyrightable Subject Matter Categories
a. §102 Copyright Act: sets out the subject matter that copyright protects.
b. Protects a range of artistic and literary works.
B. Sources of Copyright Law
a. U.S. Constitution
b. In Europe, many use natural law. But not in US.
C. Why Copyright
a. Incentive Theory – We want there to be apart therefore we will pay you. Founding fathers
invented copyright to create a robust public art domain. (a reward policy). So that artists could be
rewarded for their work.
b. Labor Theory - B/c I made it its apart of me and mine.
c. Hegelian (Moral) theory - individuality theory/powerful mechanism for self-definition. Moreso,
its apart of me therefore its important & should be protected.
d. Main Reason: to promote the progress of Science and Useful Arts.
*“Original Works of Authorship & Fixed in a Tangible Medium”
FIXATION
A. Why Fixation:
a. Four Reasons:
1) US Constitution likely requires it.
2) Advances a central justification for copyright law (encourage creation and
dissemination of artistically and culturally valuable works) & protects only works that
are likely to be preserved and thus more easily disseminated (distributed) over time &
space.
 Ex: an unrecorded performance is unlikely to be retained other than in memories
of audience.
3) Evidentiary function
 If infringement dispute, fixed copy serves as evidence of what the work is and
what it’s not.
4) Fixation ensures that a work’s (protected) expression is fully delineated (defined). This
makes expression easier to separate from any unprotected “ideas” the work may contain
or represent.
B. Statutory Requirements “Fixed in a Tangible Medium of Expression:
a. §102 : this is our foundation (p.18)
i. Derivative works – only attaches to the new work.
C. Definition:
a. §101: (p.18)
b. Basics:
i. Copyright attaches at the moment of fixation
ii. Ideas are NOT Protectable
iii. Must be FIXED.
iv. Does not have to be permanent but must be more than Transitory.
 A fraction of a second is not good enough.
 Exception for Live Broadcasting + Simultaneous Recording
v. Live Broadcasting – sports, news coverage, live performance of music, etc. – that are
reaching the public unfixed form but that are simultaneously being recorded, are
protected
vi. Does not need to be intentional, May be an accident.
D. Cases
a. White-Smith Music Publishing Co. v. Apollo
i. Issue: whether a player piano roll represented a copy of a musical composition.
ii. Held: Piano Roll was not a copy of the musical composition it represented (therefore did
not prohibit reproduction by defendant.)
iii. Rule: Fixed only if it existed in a form readable by humans not just machines
 (Piano roll was not a copy unless it was “put in a form which others [humans] can
see and read.”) People do not read piano rolls like they read music sheets.
iv. Overruled by Congress 1976 Copyright law: “directly or with the aid of a
machine/device”
b. Williams Electronics, Inc. v. Artic International
i. Rule: an audiovisual copyright on a computer program that involves user interaction
meets the “Fixed” requirement.
 Fixed when – the material is sufficiently permanent to be reproduced or otherwise
communicated for more than a transitory period.
 Stern Electronics v. Kaufman – video game meets the originality & fixation req as
an audiovisual work if certain aspects such as images & sound recur, despite each
playthrough being distinct due to player interaction w/ the game.
c. Cartoon Network v. CSC Holdings
i. Rule: a copyright holders reproduction right is not infringed upon if a reproduction of
copyrighted work exists for a transitory period of time.
d. Whitmill v. Warner Bros (Mike Tyson/Hangover)
i. Rule: human body could not & should not be considered a “tangible medium of
expression”
ORIGINALITY
-Low threshold
a. Burrow-Giles Lithographic v. Sarony (Oscar-Wilde)**
ii. Rule: Photographs are protected under copyright as “works of original authorship”
 Here, Sarony carefully orchestrated the scene that was captured (arranged all
aspects of the photo).
 Key here: photo’s are an original work of art, the work of artists’ intellectual
invention
b. Bleinstein v. Donaldson Lithographing (U.S. 1903)
iii. Rule: an illustration designed and produced for use as an advertisement is not precluded
from copyright protection solely on basis of its commercial nature
 Originality Requirement - Does not have to be fine art, lawyers will not be art
critics.
c. Alfred Bell v. Catalda Fine Arts
iv. Rule: a copyrighted work does not need to be unique to satisfy the Constitution
originality requirement.
v. Issue: is there enough originality in mezzotint copy of an original. The only protection
granted was the new things that were added to the copy (here, the mezzotints)
vi. Original work, Copies and Copies or a Copy:
 You may copy the original
 You may not copy the copy
 Ex: you may copy Monalisa b/c artist is dead & is no longer protected.
 Ex: you may not copy Bansky (living artist), you have to pay to copy a painting
by him.
d. Feist Publications v. Rural Telephone Service (U.S. 1991)**
vii. Held:
 Originality threshold is low, and Rural didn’t meet it
 Facts are not protectable

Natural law has no bearing on copyright, instead the primary objective is to
promote the progress of science and useful arts (p.34). Sweat of the Brow
Doctrine does not do anything for copyright.
e. Meshwerks, v. Toyota
viii. Held:
 Meshwerks could not point to anything that was their independent expression
 Meshwerks models depict nothing more than unadorned Toyota vehicles
 Amount of work put in is irrelevant
 In this case, the intent is relevant (p.39)
- Is it work? Or is it Creative Expression?*
f. Notes:
ix. Don’t own the sculpture but owns the picture of the sculpture
g. Chapman Kelley v. Chicago Park District
x. Not that the garden fails originality but does not meet the fixation requirement
xi. Authorship: living garden is neither “authored” nor “fixed”
xii. Key here, is that the law must have some limits
ORIGINALITY in DERIVATIVE WORKS AND COMPILATIONS
A. Both are work based in part on preexisting material sometimes copyrightable in their own right.
B. Derivative
a. Definition: §101, a derivative work is a transformation of an underlying work (p.44)
b. Ex: harry potter and Chamber of secrets is derivative work as is the French translation
C. Compilations
a. Definition: §101 pg. 45
D. §103: protection not provided for work employing preexisting material in which copyright subsists does
not extend to any part of work in which such material has been used unlawfully.
a. The copyright act accounts for the fact that these works are based in part on preexisting
materials.
E. Standard of Originality
a. Derivative
i. Question at issue: whether a new comer has added enough new, original content to a
preexisting work to make that existing work to make it copyrightable derivative work.
ii. L. Batlin & Son, Inc. v. Jeffrey Snyder (2nd Cir)
a) Rule: to be copyrightable, a reproduction must contain some original
contribution not present in the underlying work of art and be more than a mere
copy… Must be a substantial variation and not merely a trivial one.
b) Facts:
a. Replica of Uncle Sam’s Bank. Snyder made trivial changes such as the
proportion size.
c) Snyder’s Comparison to Hand of God Sculpture & “Extreme”
Skill/Labor
a. Court rejected Snyders argument b/c the replica sculpture was (1) so
unique and rare and (2) adequate public access to the original was so
limited that the replica was a benefit to society (p.48)
i. “Public interest in promoting progress in the arts”
iii. Daniel Schrock v. Learning Curve International, Inc. (7th Cir)
a) Rule: The Gracen standard embodies 2 principles: (1) the originality for
derivative works is not more demanding than the originality requirement for
other works; and (2) the key inquiry is whether there is sufficient nontrivial
expressive variation in the derivative work to make it distinguishable from
the underlying work in some meaningful way.
b) Facts:
a. Schrock argues: photos were (1) not derivative works, (2) had permission
to photograph the toys therefore making his copyright enforceable, (3)
photos contained sufficient incremental orignal expression to qualify for
copyright.
b. HIT/Learning Curve argues: (1) photos are derivative work, (2) needed
permission in light of that, (3) photos contain insufficient originality to be
copyrightable (subject to a higher standard of originality for derivative
work) , (4) Schrock orally granted them an unlimited license to use his
works.
c) Held:
a. Schrock photos meet originality req., photos are his independent created
expression (p.51)
b. Purpose of photos is irrelevant
c. Quantum of Originality required for derivative work is the same as
required for any other copyright work. Must contain a “nontrivial”
variation from the preexisting work.
d. Copyright from a derivative work arises by Operation of Law.
d) Reasoning: p.52
b. Compilations
i. Definition§101: 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.
ii. Fiest Publications v. Rural Telephone (U.S. 1991)
a) Rule: a work must be original to the author, meaning independently created
by the author & possess some minimal degree of creativity. A work may be
original even though it closely resembles other works, so long as the similarity
is fortuitous, and not the result of copying.
b) Held:
a. Rural’s “compilation” of names, towns, and telephone numbers copied by
Fiest were not original to Rural. Though it was a “Selection” of sorts, but
lacked the degree of creativity necessary to transform mere selection into
copyrightable expression.
b. Standard of Originality is low, but does exist.
i. Complier may settle upon a selection/arrangement that others have
used. Novelty is not required.
ii. Originality requires only that the author make the selection or
arrangement independently (i.e. not copying that
selection/arrangement from another work) and that is display a
minimal level of creativity.
iii. Copyright Office states that it “generally will not register a compilation with only two or
three elements, because the selection is necessarily de minimis (P.59)
iv. Bikram’s Yoga College of Indiana v. Evolation Yoga, LLC (9th cir.)
a) Rule: copyright protection is limited to the expression of ideas and does not
extend to the ideas themselves.
b) Facts
c) Held:
a. Copyright protects only the expression of ideas – the words and pictures
used to describe the Sequence – and not the idea of the Sequence itself.
b. Choudhury’s sequence is an unprotectable idea, thus is ineligible for
copyright protection as a “compilation” or “choreographic work”.
i. If protectable at all, should try patent law protections.
c. And, compilations must still satisfy requirements of §102. (Ideas, process,
and systems are unprotectible)
d. Chorographical works: not protected for same reasons as compilation.
Looks to the Copyright Office Condendium. But notes that Successions of
bodily movements can also serve basic functional purposes (like churning
butter).
v.
c.