Copyright Outline
Basic Elements of Copyright
(1) Originality
(2) Fixation
The Point of the Copyright Act is Progress, Science and the Useful Arts
Fixation
§102(a): To receive copyright protection, P must show that the work has been fixed in a tangible
medium of expression.
Fixation only counts if done by or under the authority of the author
§106 Exclusive Rights in Copyrighted Works
➔ (1) Right of Reproduction
➔ To reproduce the copyrighted work in copies or phonorecords;
➔ (2) Right to Prepare Derivative Works
➔ To prepare derivative works based upon the copyrighted work;
➔ (3) Right of Distribution
➔ To distribute copies or phonorecords of the copyrighted work to the public by sale
or other transfer of ownership, or by rental, lease, or lending;
➔ (4) Right of Public Performance
➔ In the case of literary, musical, dramatic, and choreographic works, pantomimes,
and motion pictures and other audiovisual works, to perform the copyrighted
work publicly;
➔ (5) Right of Public Display
➔ In the case of literary, musical, dramatic, and choreographic works, pantomimes,
and pictorial, graphic, or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the copyrighted work
publicly; and
➔ (6) Right of Public Performance by digital audio transmission
➔ In the case of sound recordings, to perform the copyrighted work publicly by
means of a digital audio transmission.
17 U.S.C §106A Rights of Certain Authors to Attribution and Integrity
➔ Subject to section 107 and independent of the exclusive rights provided in section 106,
the author of a work of visual art shall have the right
◆ (3)(A) to prevent any intentional distortion, mutilation, or other modification of
that work which would be prejudicial to his or her honor or reputation
17 U.S.C §101 Definitions
A “work of visual art” is
➔ (1) a painting, drawing, print or sculpture, existing in a single copy in a limited edition of
200 copies or fewer that are signed and consecutively numbered by the author or in the
case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that
are consecutively numbered by the author and bear the signature or other identifying
mark of the author.
A work is fixed when
➔ 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
◆ Transitory
● 1. Tending to pass away: not persistent
● 2. Of brief duration: temporary
<the transitory nature of earthly joy>
● Something that is by its nature or essence bound to change, pass, or come
to an end
Copies
➔ “Copies” are material objects, other than phonorecords, in which a work is fixed by any
method now known or later developed, and from which the work can be perceived,
reproduced, or otherwise communicated either directly or with the aid of a machine or
device.
◆ The term “copies” includes the material object, other than a phonorecord, in
which the work is first fixed.
Phonorecords
➔ “Phonorecords” are material objects in which sounds, other than those accompanying a
motion picture or other audiovisual work, are fixed by any method now known or later
developed, and from which the sounds can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.
◆ The term “phonorecords” includes the material object in which the sounds are
first fixed.
Derivative Works
➔ A “derivative work” is a work based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization, motion picture version,
sound recording, art reproduction, abridgment, condensation, or any other form in which
a work may be recast, transformed, or adapted. A work consisting of editorial
revisions, annotations, elaborations, or other modifications which, as a whole, represent
an original work of authorship is a “derivative work”.
◆ Original author has right to the derivative work
Compilations
➔ 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.
◆ Compilations can show sufficient originality to be afforded copyright protection.
CCC Information Services v. Maclean Hunter
Pictorial, Graphic and Sculptural Works
➔ “The design of a useful article…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”
Useful Article
➔ 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. An article that is normally
a part of a useful article is considered a “useful article”
17 U.S.C §102(a) Subject Matter of Copyright: In General
➔ 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
The “Intellectual Property” Clause
➔ The congress shall have power to promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive right to their respective
Writings and Discoveries US Const Art.1 §8 cl. 8
Originality
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:
● Literary works
○ Can include software
● Musical works including any accompanying words
● Dramatic works, including any accompanying music
● Pantomimes and choreographic works
● Pictorial graphics and sculptural works
● Motion pictures or other audiovisual works
● Sound recordings
● Architectural works
◆ Note
● Authorship also refers to the idea that copyright office says you need to be
a human author
● The copyright code is meant to be broad
Feist v. Rural
Facts are discoverable not created
➔ No originality → no copyright
➔ The Feist Test:
◆ Originality= work must be:
● (1) Independently created
● (2) Have a minimum quantum of creativity
○ Minimal creativity is a very low threshold
○ Most everything will be sufficiently original under this test
◆ Exceptions:
● Short phrases, titles, typefaces
○ Reasons not to protect such expression:
◆ (1) Originality is required in the constitution
◆ (2)To protect such “building blocks” of expression would
stifle the creativity of others who might have need of them
● I.e. you can't copyright a black stripe (not original)
and others need to use it.
◆ (3) Economically no need to give monopoly for object with
such low costs of creation
➔ Facts and ideas themselves are never copyrightable
◆ However, compilations of facts can generally be copyrighted.
➔ O’connor rejects the ‘sweat of the brow’ and focuses on the idea that you cannot own or
protect facts.
Independent Creation
Generally requires evidence of independent creation where work has already been done by
someone else
➔ Originality: (Blunt)
◆ Independent Creation
● If you made the chart through observation, not through copying, then it is
original
○ The goal is to protect the labor and skill of the chart maker (this is
the labor theory of copyright)
Bleistein
➔ Non discrimination principle
◆ Justice holmes says the line is problematic and we don't want judges to make that
call
● “It would be a dangerous undertaking for persons trained only to the law
to constitute themslebes final judges of the worth of pictorial illustrations,
outside of the narrowest and most obvious limits”
Mannion v. Coors
➔ Why is it copyrightable → choices that a photographer makes counts as originality
◆ Choices that seem like authorship:
● Rendition, timing, creation of the subject
17 U.S.C §103(a): Compilations & Derivative Works
➔ A patent may not be obtained if the differences between the subject matter sought to be
patented and the prior art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having ordinary skill in the art to
which said subject matter pertains.
Why should the standard of creativity in copyright be low?
➔ (1) Aesthetic Judgment is difficult, and changes
➔ (2) Commercial value should be respected
Originality in Derivative Works
US Copyright Act §103(a):
➔ The subject matter of copyright as specified by section 102 includes compilations and
derivative works, but protection for a work employing pre-existing material in which
copyright subsists does not extend to any part of the work in which such material has
been used unlawfully.
What is a Derivative Works
➔ (1) potentially infringes:
◆ Borrows enough from a previous work that if that previous work is still under
copyright, it would infringe copyright unless permission were given AND
◆ Adds enough additional creativity that the additions are independently
copyrightable
L. Batlin & Son, Inc. v. Snyder (protecting the public domain)
➔ A reproduction is not copyrightable if the reproduction neither requires a high degree of
skill in scaled duplication nor includes a substantial variation from the original.
◆ Although a reproduction can receive a copyright when there is substantial
variation from the original, the variation must be the result of artistic skill, rather
than accidents of the production process. Additionally, a substantial variation is
not required where an artist produces replicas larger or smaller than the original.
How are Derivative Works Protected?
➔ 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 pre existing
material employed in the work…the copyright in such work is independent of any
copyright protection in the preexisting material.
➔ Works 1922 or earlier are in the public domain
◆ After they are free to be used and interpreted by others
◆ Courts are worried that if we protect the first derivative then creativity would be
discouraged
◆ Standard of originality is the same as Feist
➔ Underlying Work
◆ In Batlin the ‘underlying works’ were in the public domain because of their age
● Plaintiff’s Work
○ For the plaintiff to successfully sue the defendant for infringement,
the plaintiff’s work must be copyrightable.
○ One must apply the originality test to the increment of creation that
the plaintiff added to the underlying work.
● Defendant's Work
○ Evaluation of the defendant’s work will come later in the lawsuit
of the plaintiff against the defendant
○ Whether the defendants work is copyrightable is a distinct question
that is best considered separately.
Works of Authorship
Works of Authorship
➔ 17 U.S.C §102(a) Subject Matter of Copyright: In General
◆ 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:
○ Literary works
◆ Can include software
○ Musical works including any accompanying words
○ Dramatic works, including any accompanying music
○ Pantomimes and choreographic works
○ Pictorial graphics and sculptural works
○ Motion pictures or other audiovisual works
○ Sound recordings
○ Architectural works
● Note
○ Authorship also refers to the idea that copyright office says you
need to be a human author
○ The copyright code is meant to be broad
● Note
○ Exclusive?
○ Quasi-Exclusive, by analogies?
◆ Ex. ejusdem generis
● Words used to interpret loosely written statutes.
Where a law lists specific classes of persons or
things and then refers to them in general, the
general statements only apply to the same kind of
persons or things specifically listed
○ Nonexclusive?
Garcia v. Google
➔ When are works created and how many are created?
◆ Parts and the final published product:
● Is each scene, when filmed, a separate work, that may be later assembled
as a part of a larger work?
◆ Works Per Copy:
● Is only one work created as a fixation is being made, or can more than
work be fixed at the same time?
○ EX. (General Rule)
◆ Student films “improvised” lecture of professor, with
permission for purpose of later study/ Literally work plus
separate audiovisual work?
● The default rule would probably state that these
are two works, but if the creator agrees, this
could be a single work.
○ EX. (Special Exception)
◆ Musician composes a song in head, teaches it to another
musician, and they record it together. Musical work plus
separate sound recording?
● Yes, sound recordings are different
○ There must be a sound recording
considered separately from whatever
other work it might fix.
◆ Are Performances Different than Works?
● What makes a performance different than the creation of words or music
or a pantomime or dance? (pantomime: the art of imitating, presenting or
acting our situations, characters or events through the use of physical
gestures and bodily movements”
○ Possibility of fixing through notation?
◆ Words could be written down independently of an
audiovisual recording; music also could be notated
independently of recording.
◆ We are used to seeing words and music written down
independently of recording, and used to calling the creators
of words and music “authors”.
● EX. (performance)
○ Performer performs previously notated
work, and performance is fixed in video or
audio (actor performers written script,
musician performs notated music, dancer
performs notated dance)
◆ Can the performance be a “work”
separate from
● (1) the notated work being
performed and
● (2) the audiovisual work or
sound recording?
➔ The court says that P’s performance was not fixed because it was not fixed under the
authority of D who was the author of performance
◆ It was not fixed by D because she was not operating the camera.
➔ Test for joint authorship:
◆ Second Circuit:
● Each author must intend to merge their contributions into a unitary whole,
and must intend to treat each other as joint authors.
◆ Ninth Circuit:
● Must “superintend” the work, exercising (or sharing) creative control.
◆ If by a joint author, then
● By default, each author owns equal undivided interest as a co-owner
○ Each co-owner can use or license the use of the work, subject to a
requirement of sharing with other co-authors any revenue received
from use or licensing.
Compendium of Copyright Office Practices §804.1
➔ “For purposes of copyright registration, a dramatic work is a composition generally in
prose or verse that portrays a story that is intended to be performed for an audience such
as plays, musicals, or operas. Generally, a dramatic work represents the action as it occurs
rather than simply narrating or describing the action. Some dramatic works include
music.
Can non-humans be authors?
➔ An animal cannot be an author Naruto v. Slater
➔ An AI cannot be an Author Copyright Office Review Board
◆ Two big issues with AI Authorship:
● Under current copyright act, the author is the initial owner, and has to
make decisions about how to use the work; no AI is sophisticated enough
(yet) to make those decisions.
Facts and Compilations
Originality
➔ Feist's modern articulation or originality requirement:
◆ Originality requires
● (1) independent creation, and
● (2) a modicum of creativity
➔ 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.
● Facts
● ideas (abstraction)
● Functional Aspects (protected if at all under the law of utility patents)
Nicholas v. Universal Pictures
◆ Generalized abstractions in a work are not copyrightable.
● These generalized abstractions such as high-level plot outlines constitute
an author’s ideas, and as such cannot be copyrighted. An author cannot be
permitted to have a monopoly on general plotlines and characters. In terms
of characters, “the less developed the characters, the less they can be
copyrighted.”
The “Intellectual Property” Clause
➔ “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. US Const, Art. I §8, cl.8
Facts, Idea and Policy
➔ Copyright is about granting incentives to engage in socially valuable activity. If facts are
important, why shouldn’t we protect their discovery with copyright, to motivate
investment in their discovery?
◆ Might at least some facts be much more valuable than the labor it took to discover
them?
◆ Are there incentives other than copyright protection to discover facts?
➔ Feist v. Rural Telephone
◆ Looking for protection of works containing facts after Feist:
● (1) Narrative form and copyrightable expression:
● (2) Creative selection and arrangement of compilations:
○ 103(a) subject matter
○ 101 compilation
➔ Baker v. Selden(Double Entry Bookkeeping)
◆ Copyright does not protect an idea, only the expression of an idea.
● This principle is known as the idea/expression dichotomy.
Copying from the Almanac (or another factual work) when is it infringement?
➔ (1) Copying from the narrative portion:
◆ Is copying of creative content, may be infringement, subject to rules concerning
de minimis copying and fair use
➔ (2) Copying of non-narrative facts:
◆ When is that copying of selection and arrangement?
Hoehling v. Universal City Studios
➔ (1) presentation as historical theory rather than fictions
➔ (2) Scenes a faire
◆ How does the scenes a faire doctrine relate to the originality doctrine of
copyright?
● Is the device so common that we assume a lack of independent creation?
● Even if it is independently created, not sufficient modicum of creativity?
○ But is this selectivity and covertly raising the standard of
creativity?
◆ I.E. towards patent standards-scriptwriter or ordinary skill
would think of this?
◆ Scenes a faire means you cannot copyright an idea
● Ex. copying the idea of missing someone during christmas time.
Plot, Theme and Abstraction
➔ Could originality or novelty be a criterion for separating expression from idea?
➔ If not then what should be taken into consideration in deciding where to draw the line?
◆ Did the plaintiff really need protection at a broad level of protection to incentivize
the creation of the work?
➔ If we protect the plaintiff's work at that level of abstraction, are we giving the plaintiff
control over an entire theme or genre about which we would like more than one
perspective?
Ideas and Abstraction Functionality I
Hard and Soft Ideas
➔ In a nonfiction context, the court sometimes distinguishes between
◆ “Hard Ideas”
● Those ideas that undertake to advance the understanding of phenomena or
the solutions of problems, such as the identification of symptoms that are
more useful in identifying the presence of a particular disease
◆ “Soft Ideas”
● Those…that do not undertake to explain phenomena or furnish solutions,
but are infused with the authors taste or opinion
➔ Baker v. Selden
◆ Copyright does not protect an idea, only the expression of an idea. This principle
is known as the idea/expression dichotomy.
● There is an important difference between the book and the visual examples
of Selden’s book-keeping system contained in the book.
○ The description of the system is an expression of Selden’s system,
which is copyrightable.
○ The visual representations of that system represent Selden’s idea
itself. These representations may not be copyrighted.
Ideas/Facts/Functional Communication and the Merger Doctrine
➔ The merger doctrine is a merger of both idea and expression.
➔ Strong and weak merger doctrines:
◆ Does the merger doctrine shield verbatim copying from liability even when
limited alternative ways of expressing the idea are available?
● Strong: yes
● Weak: no