I. Requirements for Obtaining Copyright

I. Requirements for Obtaining Copyright

a. Constitutional source of copyright

i. Article I, §8, cl.8: Congress is given the power to promote the progress of science and useful art by granting an exclusive right for a limited time to authors and inventors for their works and discoveries

1. the following items are appropriate subject matter for copyright (BUT this list is not exhaustive)

a. literary works

b. musical works (including any accompanying words)

c. dramatic works (including any accompanying music)

d. pantomimes and choreographic works

e. pictorial, graphic, and sculptural works

f. motion pictures & other audiovisual works

g. Sound recordings

h. Architectural works

i. Compilations of facts may be protected

2. The following items are inappropriate subject matter for copyright

a. Ideas

i. Stock characters/plot

b. Procedures

c. Processes

d. Methods of Operation

e. Concepts or principles

f. Discovery

g. Blank forms (unless there is text integrated with the blank form which gives it enough explanatory force to render it protectible- Bibbero)

h. Facts

i. Short phrases (happy birthday)

b. §102: copyright protection is extended to:

i. works of original authorship

ii. Fixed in a Tangible Medium of Expression, now known or later developed

iii. From which the work can be perceived, reproduced, otherwise communicated, either directly or with the aid of a machine

iv. Federal protection attaches the minute the work is original and fixed, automatically.

c. Fixed in a Tangible Medium of Expression

i. Work must be embodied in a copy or a phonorecord by or under the authority of the author

1. copy: a material object (aside from a phonorecord) by which a work is fixed by any method now known or later developed from which the work can be perceived, reproduced, or otherwise communicated, either directly or w/the aid of a machine

2. phonorecord: material object in which sounds, other than those accompanying a motion picture or audiovisual work, are fixed by any method now known or later developed, from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine

ii. This must be sufficiently permanent or stable (so as to permit it to be perceived, for a period of more than transitory duration)

iii. Note: must distinguish between ideas and expressions- can’t copy a tangible work, but you can copy the idea behind it (see below)

d. Originality

i. Work must be independently created by the author

1. this does not require the work to be novel

ii. Work must possess some minimal degree of creativity

1. this is a very low standard- no matter how crude, humble or obvious

2. Creativity must be inherent in the new work:

a. the author must contribute more than a trivial variation of a previous work. The work must be recognizably his own

3. The following DO NOT possess the requisite level of creativity

a. Brief words, phrases, titles, slogans, familiar symbols & designs

b. Forms of consideration only created for functional consideration (play, stop, eject)

c. Mere variations of typographic ornamentation, lettering or coloring

d. Mere listing of ingredients or contents

e. Idea/Expression Dichotomy

i. §102(b) says that copyright protects the expression of an idea, but not the idea itself

1. E.g. there is a clear distinction between a book as an object, and what the book seeks to describe or explain. Copyright protection can extend to the book itself- the right to print and publish it. It will not prevent the right of others to use the method and sell books that employ the same method (Baker v. Seldon)

ii. Merger Doctrine (defense to infringement)

1. protects ideas from private ownership

2. when the expression is essential to the statement of the idea, the expression will never be protected

3. Remember, Merger is used to determine infringement, NOT if the work is copyrightable to begin with.

4. Different categories of ideas help to decide when to apply the Merger Doctrine

a. Ideas that undertake to advance the understanding of phenomena or the solution of problems

i. It is more important to keep these ideas free

ii. E.g. idea to get a lightweight vehicle to Jupiter via Saturn

b. Ideas that are infused with the author’s taste or opinion

i. These don’t materially assist the understanding of future thinkers, so its easier to protect them

ii. E.g. pastrami tastes better than corned beef

5. Step by step analysis of merger doctrine

a. Identify the idea that the work expresses

b. Attempt to distinguish that idea from the author’s expression of it

i. If the court concludes that the idea & its expression are inseparable, then the MD applies & © extends to neither

ii. If the court can distinguish the idea from the expression, then the expression will be protected, b/c the fact that one author has copyrighted one expression of that idea will not prevent others from creating and copyrighting their own expressions of the same idea, b/c there is more than one way to express the idea

c. Apply the merger doctrine when its more beneficial to the public interest to have the body of work unprotected

d. But, when the public is not benefited as much as the intention of the Act is destroyed, refuse Merger Doctrine argument

i. Categorize the idea very generally & then you are free to protect the more detailed ideas as expression.

II. Murky Copyrightable Subject Matter

a. Facts and Compilations

i. Facts are NOT copyrightable

1. Factual works (e.g. historical novels, etc.) are protected only in their fixed expression. The underlying theories (interpretation of the facts) are not protectible; they are the equivalent of ideas.

2. Only expression of theories, and selection, coordination and arrangement are a source of originality and require protection (Nash v. CBS)

a. This doesn’t apply to fictional works since they are not factually based.

3. Once the creator represents his work as factual, he is estopped from treating it as original and creative, even if it is found not to be true.

4. News events are not copyrightable, but analytical reports based on the news might be- must differentiate between the substance of the information contained in the report, and the event itself.

ii. Compilations, including compilations of facts MAY be protected

1. As long as they are fixed and original

2. A compilation is a work formed by the collection and assembling of preexisting material or data that are selected, coordinated, or arranged in such a way that the work as a whole constitutes an original work of authorship

a. a compilation must result from a process of selecting & organizing previously existing material- it doesn’t matter if that material were subject to copyright or not

iii. there are 2 subcategories of compilations

1. anthologies

a. collections of material, each one of which could independently be thought of as a copyrightable work,

i. e.g. book of American poetry, issue of law review

2. data compilations

a. collection or assembly of material that is not independently copyrightable,

i. e.g. directory, table, almanac

iv. 3 elements to be met for compilation to be protected

1. collection and assembly of preexisting material, facts or data,

2. selection, coordination, or arrangement of these materials

3. creation, by virtue of this selection, of an original work of authorship

a. Selection: what facts to include

b. Arrangement/Coordination: how to organize the facts

i. Originality can be found in the selection & ordering of facts- just b/c arrangement responds logically to needs of the market doesn’t negate. Use of logic itself is independent creation (CCC)

ii. But, some courts won't assign originality to a selection or arrangement that is entirely “typical” or “practically inevitable”

1. in these situations, use Merger Doctrine

4. If the compilation is copyrightable, the copyright protection only extends to those original components of the compilation, NOT to the facts themselves (§103)

v. Rationale: the value to consumers is in the combination of its individual parts

1. The individual parts alone are not copyrightable b/c they lack sufficient originality

vi. Look at the work as a whole, combination of its components, in order to decide if it can be protected

1. To get copyright for a basic work, must show someone else copied the aggregate of your work (not one single element or component)- if a basic work got protection, it would be “thin” (i.e. only an exact replicate of all the elements of the first work)

a. E.g. greeting cards, where text alone is too commonplace to be protected, but when considered with artwork, & arrangement (as a whole) will be considered original enough to be protected

b. E.g. “For Rent” signs sold as a packet of 5 do not warrant copyright protection b/c they are not independent works, and they exist separately from their components. They are 5 individual works that are not protected separately.

2. Circuit Split on whether page breaks inserted into cases are copyrightable as compilations or not

a. 8th circuit: says its copyrightable

i. but it seems that they focus too much on sweat of the brow- and it might have been overruled by Feist

ii. Sweat of the Brow: theory that someone should be given © in a work that they labored over (put a lot of time, effort, resources into the work, but not technically covered by the rules, b/c not original)

b. 2nd circuit: says its not- lacks the requisite originality

b. Derivative Works

i. §101: a work based on one or more pre-existing works such as:

1. translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted based on an underlying work

a. 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

ii. A derivative work may be eligible for © if

1. It is taken from a pre-existing work in the public domain

2. It is taken from a pre-existing © work with a license (need permission from © owner)

a. 103(a) if you make a DW from a © work & don’t obtain a license, not only are you infringing, but you cannot get a © in your work at all

b. Remember, even if the DW falls into the public domain, it may be the case that the underlying work is still protected. So, use of the DW will still constitute infringement.

iii. To determine if a work is a derivative work, and not a reproduction or copy

1. Must be at least some substantial variation, not trivial,

2. Focus on the variation in the derivative from the original work

3. The standard of originality is higher for derivative works than it is for an “original work”

a. Policy:

i. provides more incentive for originality b/c can't get the work copyrighted unless its substantially different from the original

ii. when another party comes along & makes a derivative work, the courts can tell whether he is copying from the original, or from some other derivative work that is already out there b/c this first derivative work has substantial variation from the original to easily distinguish it (Gracen)

iii. to the extent that some of the claimed originality is the byproduct of functional considerations, upholding a © would remove the work from the public domain b/c other derivative work authors would not be able to use those functional considerations in their derivative works

1. e.g. shouldn’t give a copyright based on a functional consideration like material, b/c that means that no one else could make the product using that material.

b. Great skill & exactitude in producing a scaled reproduction of a great work may be afforded © protection even though its not technically original or different. (Alva Studios)

c. Pictorial, Graphic, and Sculptural Works

i. §101: 2 and 3 dimensional works of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans

1. include works of artistic craftsmanship insofar as their form, but not their mechanical or utilitarian aspects

2. 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 articles

3. a useful article is

a. one which has an intrinsic utilitarian function, that is not merely to portray the appearance of the article or to convey information

ii. this means that the design of a useful article is only sculptural & thus copyrightable if the design can be separated from its useful article

iii. Step by step analysis for useful articles

1. Is the article useful?

a. If no, then its not copyrightable

b. If yes, go to 2

2. Does the article have physically or conceptually separable aesthetic features?

a. The statutory separability requirement confines © protection to those aspects of the design that exist apart from its utilitarian value and that could be removed w/out reducing the usefulness of the item

b. Pictorial, graphic, or sculptural features incorporated in the design of a useful article are Conceptual Separable if they can stand on their own as a work of art traditionally conceived & if the useful article that embodies it would be equally useful w/out it

i. Ask not whether the features to be © could be sliced off for separate display, but whether one could conceive of this process

c. There are 6 tests to determine separability

i. Primary aspect test:

1. Whether the primary aspect of the article is aesthetic or utilitarian

a. belt buckles were determined to be conceptually separable sculptural elements b/c people wore them for ornamentation on parts of the body other than the waist

ii. Use test:

1. what is the object most often used for- art, or utility?

iii. Market test:

1. if the object were stripped of its utilitarian capacity, would it still have a market as art?

iv. The wholly unnecessary test:

1. if the features of the article are necessary to the utilitarian function of the article, they are not separable; the aesthetic features have to be wholly unnecessary to the functioning of the article to be copyrightable

v. Newman’s Dissent in Barnhardt:

1. the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function to be considered conceptually separable and therefore copyrightable

a. but this isn't law!

b. e.g. is it a chair, or a sculpture?

vi. Brandir test:

1. what the artist’s motivation was in making the work: aesthetic or functional?