Professor Fischer
Originality and the Idea Expression
Dichotomy
January 15, 2003

• Announcement: U.S. Supreme Court rejects constitutional challenge to Sonny Bono Copyright
Term Extension Act constitutional (7-2)
• Wrap-up (fixation, treaties)
• A few more words on fixation and the antibootlegging provisions
• The originality requirement
• The idea-expression dichotomy (if we have time)

• Berne Convention
• TRIPS Agreement
• WIPO Copyright Treaty
• WIPO Performances and Phonograms
Treaty

• Fixation is required for a work to be copyrightable
• It is a constitutional requirement - a work must be a “writing” to be copyrightable
• Fixation requirement is broadly worded and technology-neutral
• 2 specific provisions designed to solve problems arising from technology-neutral broad fixation provision: Specific fixation provision to protect live broadcasts (of things that are not writings) in s. 101 (otherwise would not be fixed); Explicit federal protection for unfixed works in antibootlegging legislation in s. 1101

Bootleg Recordings and the Protection of Live
Performances: A Problem of Statutory Construction
• Problem – if a live performance is not being
“transmitted” but is being simultaneously recorded, the Copyright Act does not appear to treat this performance as being fixed – though maybe it falls withiin the first sentence of the statutory definition of fixation in s.
101
• It appears (at least according to Nimmer) that this is an example of
Congress legislating more narrowly than the
Constitution would permit

• A solution to the statutory construction problem in the definition of fixation arising from broadly drafted technology-neutral fixation provisions
• Title 17 s. 1101
• Grew out of the Agreement on Trade Related
Aspects of Intellectual Property (TRIPS) (part of
WTO GATT) and became law by operation of the
1994 Uruguay Round Agreements Act (requires fixation for live musical performances)
•
Is it constitutional (see U.S. v. Moghadam (11th
Cir. 1999)? Why or why not? Is this decision inevitable?

TODAY: MORE ON COPYRIGHTABLE
SUBJECT MATTER -- ORIGINALITY
• Neither Berne nor TRIPS expressly require originality though they assume some kind of authorship
• 1976 Act’s originality requirement is at 17
U.S.C. §102(a)
• Before we consider it, we will examine 3 significant early copyright law cases that dealt with originality

•
1. Burrow-Giles Lithographic Society v.
Sarony (1884) CB p. 76
•
2. Bleistein v. Donaldson Lithographic Co.
(1903) CB p. 79
•
3. J. Alfred Bell & Co. v. Catalda (2d Cir.
1951) CB p. 85

• Who was Napoleon
Sarony, the plaintiff?
•
What is lithography?
•
What were the 2 important constitutional questions on which the Supreme Court had to rule in this case?

• Is this snapshot of my dogs sufficiently original to be copyrightable?
• Does it matter whether my goal was to produce a likeness of my dogs as a keepsake?
• What if I just set the camera up to take pictures at 10 minute intervals and it took this picture, among others?
• What if I decided to take a photo for use on a
Christmas card so I put the holiday scarves on the dogs?

• Justice Oliver Wendell
Holmes - an unsuccessful copyright plaintiff
• What was the issue that
Holmes had to decide in this case?
• Is Bleistein’s ruling on the amount of originality required for copyrightability consistent with Burrow-Giles? With the Patent and Copyright clause?
• What is the
Bleistein nondiscrimination principle?
Do you agree with it?

• Is a graphic nonverbal representation a constitutional writing?
• What about a sound recording? Does the reference to “visible expression” in
Burrow Giles indicate that these are not writings?
• What about a technology that captures smells so that they can be perceived by motion picture audiences? Could the recorded smells be constitutional writings?

• Who were the plaintiffs in Alfred Bell & Co. v.
Catalda (2d Cir. 1951)?
•
What did they seek copyright protection for?
•
Were the works copyrightable, according to
Justice Frank?
• Do you agree? Why or why not?
•
Is Bridgeman Art Library v. Corel Corp. (CB p.
87) consistent with Bell v. Catalda? Why or why not?

•
Does the 1976 Act, like the 1909 Act, protect “writings of an author”?
• No - “Original works of authorship” (17
U.S.C. § 102(a))
• Why use narrower language than the
Constitution?
• What is the latest Supreme Court interpretation of section 102?

• The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. . . Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity . . . To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.

• Jane writes a song. Jane never plays her song for anyone else, and consequently
Emma has never heard Jane’s song.
Suspend credulity and imagine that Emma writes a song that is identical to Jane’s. Is
Emma’s song copyrightable under the 1976
Copyright Act?

• “. . .[I]f by some magic a man who had never known it were to compose anew
Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.”
•
Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir.
1936), aff’d, 309 U.S. 390 (1940)

• Arthur, a forger, creates an exact reproduction of
Rembrandt’s 1629 Self
Portrait.
• Experts cannot distinguish
Arthur’s copy from the original
• Is Arthur’s painting copyrightable under the
1976 Copyright Act?

• The courts over the years have progressively lowered both the statutory and constitutional standards for originality.
• Although Congress did not want the language in §102 to be coextensive with
Art. 1 s. 8 cl. 8 of the Constitution, these standards have converged.