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
the following items are appropriate subject matter for copyright (BUT this list is not exhaustive)
literary works
musical works (including any accompanying words)
dramatic works (including any accompanying music)
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures & other audiovisual works
Sound recordings
Architectural works
Compilations of facts may be protected
The following items are inappropriate subject matter for copyright
Ideas
Stock characters/plot
Procedures
Processes
Methods of Operation
Concepts or principles
Discovery
Blank forms (unless there is text integrated with the blank form which gives it enough explanatory force to render it protectible- Bibbero)
Facts
Short phrases (happy birthday)
§102: copyright protection is extended to:
works of original authorship
Fixed in a Tangible Medium of Expression, now known or later developed
From which the work can be perceived, reproduced, otherwise communicated, either directly or with the aid of a machine
Federal protection attaches the minute the work is original and fixed, automatically.
Fixed in a Tangible Medium of Expression
Work must be embodied in a copy or a phonorecord by or under the authority of the author
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
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
This must be sufficiently permanent or stable (so as to permit it to be perceived, for a period of more than transitory duration)
Note: must distinguish between ideas and expressions- can’t copy a tangible work, but you can copy the idea behind it (see below)
Originality
Work must be independently created by the author
this does not require the work to be novel
Work must possess some minimal degree of creativity
this is a very low standard- no matter how crude, humble or obvious
Creativity must be inherent in the new work:
the author must contribute more than a trivial variation of a previous work. The work must be recognizably his own
The following DO NOT possess the requisite level of creativity
Forms of consideration only created for functional consideration (play, stop, eject)
Mere variations of typographic ornamentation, lettering or coloring
Mere listing of ingredients or contents
Idea/Expression Dichotomy
§102(b) says that copyright protects the expression of an idea, but not the idea itself
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)
Merger Doctrine (defense to infringement)
protects ideas from private ownership
when the expression is essential to the statement of the idea, the expression will never be protected
Remember, Merger is used to determine infringement, NOT if the work is copyrightable to begin with.
Different categories of ideas help to decide when to apply the Merger Doctrine
Ideas that undertake to advance the understanding of phenomena or the solution of problems
It is more important to keep these ideas free
E.g. idea to get a lightweight vehicle to Jupiter via Saturn
Ideas that are infused with the author’s taste or opinion
These don’t materially assist the understanding of future thinkers, so its easier to protect them
E.g. pastrami tastes better than corned beef
Step by step analysis of merger doctrine
Identify the idea that the work expresses
Attempt to distinguish that idea from the author’s expression of it
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
Apply the merger doctrine when its more beneficial to the public interest to have the body of work unprotected
But, when the public is not benefited as much as the intention of the Act is destroyed, refuse Merger Doctrine argument
Categorize the idea very generally & then you are free to protect the more detailed ideas as expression.
Murky Copyrightable Subject Matter
Facts and Compilations
Facts are NOT copyrightable
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.
Only expression of theories, and selection, coordination and arrangement are a source of originality and require protection (Nash v. CBS)
This doesn’t apply to fictional works since they are not factually based.
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.
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.
Compilations, including compilations of facts MAY be protected
As long as they are fixed and original
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 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
there are 2 subcategories of compilations
anthologies
collections of material, each one of which could independently be thought of as a copyrightable work,
e.g. book of American poetry, issue of law review
data compilations
collection or assembly of material that is not independently copyrightable,
e.g. directory, table, almanac
3 elements to be met for compilation to be protected
collection and assembly of preexisting material, facts or data,
selection, coordination, or arrangement of these materials
creation, by virtue of this selection, of an original work of authorship
Selection: what facts to include
Arrangement/Coordination: how to organize the facts
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)
But, some courts won't assign originality to a selection or arrangement that is entirely “typical” or “practically inevitable”
in these situations, use Merger Doctrine
If the compilation is copyrightable, the copyright protection only extends to those original components of the compilation, NOT to the facts themselves (§103)
Rationale: the value to consumers is in the combination of its individual parts
The individual parts alone are not copyrightable b/c they lack sufficient originality
Look at the work as a whole, combination of its components, in order to decide if it can be protected
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)
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
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.
Circuit Split on whether page breaks inserted into cases are copyrightable as compilations or not
8th circuit: says its copyrightable
but it seems that they focus too much on sweat of the brow- and it might have been overruled by Feist
2nd circuit: says its not- lacks the requisite originality
Derivative Works
§101: a work based on one or more pre-existing works such as:
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 work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole represent an original work of authorship is a derivative work
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.
To determine if a work is a derivative work, and not a reproduction or copy
Must be at least some substantial variation, not trivial,
Focus on the variation in the derivative from the original work
The standard of originality is higher for derivative works than it is for an “original work”
Policy:
provides more incentive for originality b/c can't get the work copyrighted unless its substantially different from the original
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)
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.
§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
include works of artistic craftsmanship insofar as their form, but not their mechanical or utilitarian aspects
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
a useful article is
one which has an intrinsic utilitarian function, that is not merely to portray the appearance of the article or to convey information
this means that the design of a useful article is only sculptural & thus copyrightable if the design can be separated from its useful article
Step by step analysis for useful articles
Is the article useful?
If no, then its not copyrightable
If yes, go to 2
Does the article have physically or conceptually separable aesthetic features?
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
Whether the primary aspect of the article is aesthetic or utilitarian
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
Use test:
what is the object most often used for- art, or utility?
Market test:
if the object were stripped of its utilitarian capacity, would it still have a market as art?
The wholly unnecessary test:
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
Newman’s Dissent in Barnhardt:
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
but this isn't law!
e.g. is it a chair, or a sculpture?
Brandir test:
what the artist’s motivation was in making the work: aesthetic or functional?
If no, its not copyrightable
If yes, copyright extends to the separate features (not to the whole article)
Original works of art do not cease to be such when they are embodied in useful articles,
so for this purpose, the following factors make no difference whatsoever
The potential availability of design patent protection for the same subject matter
The intention of the artist as to commercial application & mass production of the design
The aesthetic value of the deign or its total lack thereof
The fact that the design, in its useful embodiment, was mass produced and merchandised commercially, on a nationwide scale
There is full protection against copying the 3 dimensional shape of only 3 kinds of useful articles
architectural works
vessel hulls
computer “mask works”
Architectural Works
Laws for buildings erected PRIOR to 1990
materials (sketching, drawings, and models) of the work are protected
actual buildings themselves are not (so can look at a building & mimic it, as long as didn’t copy the plans)
this is b/c actual building had utilitarian value & hard to separate
Illegal to take someone’s plans & photocopy them, but not illegal to see a building & copy it from sight
It was thought that with buildings, separability of aesthetic & utilitarian elements were inseparable so even the aesthetic elements were not copyrightable
Laws for building erected AFTER 1990
§101: the design of a building as embodied in any tangible medium of expression, including a building, architectural plan, or drawings; the work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features
§102(a)(8) specifically mentions architectural works as protectible material
But, §102(b)- idea/expression dichotomy applies to architecture
§120 limits the rights regarding architecture
(a) its not infringement to take photos of a building that is visibly accessible
(b) the current owner can make alterations to the building w/out the copyright owner’s consent
this means owner making changes to the house, not whether expanding the building is an alteration
distinction between character integral to the story (one around which the story is based) and character who is a “mere chessman” and only serves to further the plot
A character that appears in a long series of works, and is in many situation, might take on a personality sufficiently rich in order to protect that character from infringement
No need for an extra incentive; public employees are already paid to do the work, citizens pay taxes, and employees don’t need an incentive to create, which is fundamental to the purpose of the Act.
