INTRODUCTION TO INTELLECTUAL PROPERTY LAW
FALL 2009
Professor Fischer
Class Outline: Class 2– Aug. 25, 2009: Copyrightability: The Originality
and Fixation Requirements
I. Big picture theme: copyrightability = what subject matter is protected
by copyright law?
II. Constitutional Question: Is it a “Writing” of an “Author”? If so,
Congress may protect it for a “limited time” to “promote the progress of
Science and the Useful Arts”. See U.S. Constitution, art. I, § 8, cl. 8.
III. Statutory Originality Requirement
-17 U.S.C. § 102(a) (Copyright Act of 1976 (as amended, this is the current
copyright statute))
-Is there a statutory definition of “original”?
A. Bleistein v. Donaldson Lithographing Co. (1903) [C p. 309]
-This case was decided under an earlier copyright statute than the current
1976 Act
-Describe the work at issue
-Did the Supreme Court find this work to be copyrightable?
-Can a work that depicts actual people or things be copyrightable? Should it
be?
-Did the work fall within a category of protected works under the 1874
statute?
-How did Justice Holmes answer the policy question of what sort of works
and authors the copyright law should encourage? (His answer is known as
the nondiscrimination principle) Would you have answered the question in
the same way?
B. Is a photograph copyrightable? How did the Court answer this question
in Burrow-Giles Lithographic Co. v. Sarony (1884)? Would you have
answered the question in the same way?
C. What are the two requirements for originality set out by the Court in
Feist Publications v. Rural Telephone Service (1991) [C p. 315]? Write
them in the blanks below:
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2.
Have you ever created a work that would meet the originality requirement?
If so, describe this work here:
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If you haven’t ever created such a work, think of one that would meet the
originality requirement. Ask another student whether copyright law should
protect your work (or your imagined work) as a matter of policy.
D. What is a compilation? What do sections 103(a) and (b) provide as to
the copyrightability of compilations?
Were Rural’s white pages listings copyrightable? Why or why not?
E. What are the major theoretical justifications for copyright law? Which
one(s) did the Supreme Court endorse in Rural by its rejection of the “sweat
of the brow” doctrine? Is this consistent with the Court’s approach in Alfred
E. Bell & Co. v. Catalda (2d Cir. 1951)?
F. Identify all possible sources of originality in the Blackmon photograph
(Problem 6-1 at C p. 314).
G. Assume that Brooklyn is liable for copyright infringement if the Frack
Gallery’s digital reproductions are original (and therefore copyrightable).
Are the reproductions original? (Problem 6-2 at C p. 326).
G. Does U.S. copyright law provide enough protection for database
publishers, or should the U.S. move to a model more like the EU Database
Directive?
IV. Fixation Requirement
A. What is the constitutional basis for this requirement?
B. What is the statutory basis?
C. What policy justifications can you think of for the fixation requirement?
D. What is an example of an unfixed work that would not be protected by
federal copyright law? Describe it here:
E. Williams Electronics, Inc. v. Arctic International (3d Cir. 1982) [C p.
329]. Williams had 3 registered copyrights for different aspects of his
DEFENDER games. What did these copyrights cover? Did defendant
Arctic succeed in its contention that the audiovisual copyrights were invalid
for failing the fixation requirement? Should it have? Did the participation
of the player deprive Williams of copyright protection?
V. Wrap-up Points
-To be copyrightable, a work must be original and fixed in a tangible
medium of expression
-While the originality requirement is a low threshold, some works will not
satisfy it and will therefore not be protectable under copyright law
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-Courts have tended to readily find fixation in the digital realm.
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