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School: Georgetown University Law Center

Course: Copyright

Year: Fall, 2005

Professor: Julie Cohen

Text: Copyright in a Global Information Economy, 1st Ed.
Text Authors: Julie Cohen


This outline is © copyright 2006 by Maximilian Ventures, LLC, a Delaware limited liability company. This outline, in whole or in part, may not be reproduced or redistributed without the written permission of the copyright holder. A limited license for personal academic use is permitted, as described below. This outline may not be posted on any other web site without permission. ILRG reserves the exclusive right to distribute this outline.



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    1. Constitutional

    2. Statutory


    1. FIXATION§ 102(a) requires a work is “fixed in a tangible medium of expression” to qualify for copyright protection.

      1. § 101: Work is “fixed” if

          1. it is fixed in tangible medium of expression

          2. sufficiently permanent or stable to permit it to be perceived reproduced or otherwise communicated for a period of more than transitory duration

          3. must have been fixed by or under the authority of the author.

      2. RATIONALE—focus on effect (of sufficient permanence or stability) produced by the work rather than the particular means used to create or store it, thereby avoiding anomalous decisions such as White-Smith Publishing Co. v. Apollo Co. (US 1908) which deemed piano rolls beyond protection because it was not a “written record or intelligible notation” (i.e. content could not be discerned by the public without the intervention of a mechanical device). Definition tries to protect original basis of copyright in the publication of printed materials.

          1. Complication—emails and other ephemeral media—if they are not protected other digital works may not be either, if they are then is fwding an email infringement?


          1. Repetition of a transitory image qualifies as fixed. Common core of experience. Williams Electronics v. Artic Int’l (3d 1982) [repetitive image in video game is “fixed” despite player interaction causing the image to change]

            1. This case corrects the Apollo doctrine in that the work itself requires both technological and human interaction to be displayed, but is it still considered “fixed” by the court.

          2. Live performances w/o recording are not protectable

            1. Transmission rule—transmitted sounds or images are protectable if fixation (record) made while being transmitted. § 101 (leg hist.).

            2. Bootleg problem—strict language of statute requires both transmission and recording under permission of author to be copyrighted; live performances not transmitted were not covered, permitting bootlegging by audience members.

                • Congress enacted amend. to Copyright Act to implement TRIPs Agreement § 1101(a) protection for live music performances (no fixation w/o permission of performer, no distributing copies).

                • Court said this is not consistent with Const. copyright protection, but allowed under Commerce Clause because not “fundamentally inconsistent” with Copyright Clause. US v. Moghadam (11th 1999).

      4. COPIES—fixation also an issue in determining when a copy has been made.

          1. Court found transferring files from disk onto RAM of computer is copying because the programs become fixed (enough to be viewed/ utilized) even though the fixation is temporary. MAI Systems v. Peak Computer (9th 1993) [later statutorily overruled by § 117 permitting 3rd party repair/ maintenance]

            1. NOTE: § 101 requires that a copy be fixed in a way that permits perception but does actually require that it is perceived.


          1. Berne Convention leaves fixation decision to individual countries (most require only form in which others can perceive it)

          2. Neither WIPO nor TRIPs Agreement mention fixation

          3. EU specifically exempts certain copies:

            1. Transient / incidental aspect of process (e.g. viewing web page)

            2. Integral / essential to the technical process of viewing

            3. Lawful use or transmission by ISP

            4. No independent economic significance

              1. even some uses with economic significance do not adversely impact author (e.g., cyber café charges to surf the web)

    1. ORIGINALITY—§ 102(a) extends copyright to “original works of authorship”

      1. WHAT IS ORIGINAL?—1909 Act contained no originality requirement, it was added in 1976 Act. Originality is not a Const. requirement so courts have struggled to interpret what it means. Progress of case law has been increasingly satisfying “originality” at a very minimal threshold.

          1. A photograph that reflects creativity in the photographer’s selection of costume, pose, lighting and composition is sufficiently original to qualify for copyright protection. Burrow-Giles Lithographic v. Sarony (US 1884) [posed photograph of Oscar Wilde is a proper subject of copyright]

          2. People are free to copy the life-subject of a work, but not to copy the copy. All that is required is some personal input on the subject matter by the author. Use as advertisement does not undermine originality (subjective standard of originality). Bleistein v. Donaldson (US 1903) [chromolithographs of people on an advertisement are copyrightable]

            1. Announces non-discrimination standard where judges should not evaluate merit of work or tastes of the public.

            2. NOTE: planning and original mental conception language from Burrow-Giles has disappeared.

          3. Originality means that the particular work “owes its origin” to the author. No large measure of novelty is required so long as input of author is “more than merely trivial.” Alfred & Bell v. Catalda (2d 1951) [A lithograph etching of a painting in the public domain is protectable.]

            1. NOTE: Feist later rejects a “sweat of the brow” doctrine which rewards effort, but the language in Catalda emphasizes the tie between labor and talent suggesting that it is skilled labor (with its irreducibly mental element) that they are protecting.

          4. Originality is not satisfied where the work is simply “slavish copying”. Some distinction beyond a change of medium or mere technical skill is necessary. The Bridgemann Art Library v. Corel (SDNY 1999) [transparencies of paintings are not protected]

          5. Cf. In patent law, a patent may not be awarded unless there is sufficient difference from the original that the new version / development would not have been obvious to an observer trained in that field upon seeing the original. Graham v. John Deere (US 1966)

            1. But copyright can be granted in cases where the originality requirement of patent is not met. Laureyssens v. Idea Group (SDNY 1991) [granting copyright in foam puzzles where multiple expired patents existed in similar designs]

          6. NOTE: modern standard for originality is Feist “minimal creative spark” and no “sweat of the brow”


          1. Japan & Germany require high level of originality including creativity and artistic merit (qualitative approach)

          2. Italy & France require only personal expression

          3. UK requires that the work originate from the author and not be copied.

    1. IDEA/EXPRESSION DISTINCTION§ 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.”

      1. RATIONALE: (1) Define line btw copyright and public domain; (2) define line between copyright and patents

      2. FORMS: Blank forms are not copyrightable, because they are designed to record information, not convey information. But, the instructions on forms for filling them out are copyrightable. Edwin K. Williams & Co. v. Edwin K. Williams & Co. East). And, if a form in designed so as to guide the user is filling itself out, e.g. some test answer sheets, it may be copyrightable. Harcourt Brace & World, Inc. v. Graphic Controls Corp. 37 CFR 202.1

          1. In obtaining the copyright to an explanation of a method, one controls only the expression of the explanation and not the method itself. A book is intended to communicate knowledge and the purpose would be frustrated if that knowledge could not be used without infringing the copyright of the book. Baker v. Selden (US 1879) [method of bookkeeping and the blank ledgers necessary to that method are not the proper subject of copyright; forms are the system (or whatever expression is in the forms is overcome by the merger with the system)]

      3. MERGER DOCTRINE: if a limited number of ways exist to express an idea, the idea and the expression merge into an uncopyrightable whole (E.g., the rules of sweepstakes, Morrisey v. Proctor & Gamble or “scenes a faire”, Hoeling)

          1. As the number of potential expressions expand, the courts can grant “thin” copyright protecting only against virtually identical copies.

          2. This is sometimes a defense to infringement rather than a bar to copyright

      4. FACTS: facts are not copyrightable because they are discovered and not created.

          1. News is not copyrightable. Int’l News Service v. Assoc. Press (US 1918)

            1. But state unfair competition law may provide protection under a labor theory (news as common good blends with labor of collection to create quasi-property) when copyright does not.

          2. In historical fiction, facts, theories or interpretations of history are uncopyrightable ideas. A.A. Hoehling v. Universal City Studios (US 1980) [author of fictional work which borrowed details / theory of historical work does not violate copyright]

            1. Constitutional justification: copyright is supposed to advance arts/ sciences and not protecting fact prevents waste of duplicative fact finding, thus encouraging historical works.

      5. While facts cannot be copyrighted, classification is a creative endeavor which can be copyrighted. When there are a great number of variations of expression, the process of selecting one is an original process. Work need not be aesthetically pleasing to be literary (Feist). American Dental v. Delta Dental (7th 1997) [granting copyright in a taxonomy (categories of dental work)]

          1. NOTE: Baker said that a copy cannot utilize the expression of the original, but that copyright is not held in the process. Here the claim is not in the process (Delta may use the ADA system and encourage others to do so) but in the expression (Delta may not publish a derivative work based on the ADA code).

  • Easterbrook’s Variations Approach—

The more variations there are, the more original each individual expression is.

Copyright tracks the line between sufficient number of variations (copyrightable) and too few variations (merger doctrine).

Cohen says: Whereas the originality requirement has gradually lowered the bar for protection, the idea / expression distinction seems to work as a corrective to guard against unoriginal work being protected simply because it slides above the minimal test applied by the courts. Also, it seems to be (however accurately) a more objective and less discretionary test than originality. At the same time, it may be that the courts end up using originality as a test of whether something like a bookkeeping method is an idea or expression

    1. DERIVATIVE WORKSA "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".§ 101.

      1. BASIC LIMITATIONS: (1) does not cover any part of the work in which copyrighted material has been used unlawfully; (2) Only covers new contributions and gives no exclusive right to preexisting material (cannot limit original copyright holder’s rights)


  • Which circuit are you in?

  • Level of skill required to make derivative work (we reward skilled labor, not sweat)

  • What is the underlying work? (differing standards for fine art v. functional items)

  • Access (did the DW author have access to the original work?)

  • Who holds copyright in underlying work?

      1. A replica of a work in the public domain must have changes that are more than merely functional/ trivial in order to qualify for copyright protection as a derivative work. L. Batlin & Son v. Snyder (2d 1976) [plastic version of metal Uncle Sam coin bank was not copyrightable]

          1. Introduces public benefit of access as a basis for granting copyright (constitutional but not statutory basis)

          2. Unprotected middle ground between two protected categories.

            1. Exact copy requiring great skill to make (Alva Studios protection of Hand of God replica)

            2. Substantial originality.

          3. Dissent would permit thin copyright to protect exact replicas.

      2. Two-part test from Durham (1980):

          1. the original aspects of the work must be more than trivial

            1. Purely functional alterations are trivial. Entertainment Research Group v. Genesis Creative (9th 1997) [inflatable costumes of copyrighted cartoon characters not copyrightable]

            2. ERG v. Genesis distinguishes Doran v. Sunset House Dist. Corp. (SD Cal 1961) [permitting copyright in 3D Santa Claus]—Doran gave protection to works that “differed sufficiently” but that lower standard only applied because the existing work was in the public domain.

          2. the original aspects must reflect degree of reliance on preexisting material and not affect the scope of the copyright protection in the preexisting material

            1. This element prevents harm to primary holder’s rights to re-license derivative works

            2. NOTE: Idea of reflecting degree of reliance suggests reciprocity – the derivative work must involve as much originality as the aspects of the preexisting work that are used – difference between copy and derivative work. Adds a concept of fairness to the statutory minimum mentioned in requirement (a)


          1. ETS-Hokin v. Skyy Spirits (9th 2000): photograph of a bottle was not a derivative work because the bottle was not a pre-existing work (but is photograph of a protected work derivative? Perhaps)  independently copyrightable

          2. SHL Imaging v. Artisan House (SDNY 2000): photograph of protected work is not derivative because it does not alter or recast the original independently copyrightable

      4. PERMISSION REQ: Otherwise copyrightable derivative works are not copyrightable without the permission of the underlying copyright holder. Pickett v. Prince (7th 2000) [denying copyright in guitar shaped like Prince symbol]


          1. Posner approach: derivative protection is designed to protect works that would not otherwise be protected in a category of their own, presumably because they are not original enough to merit regular copyright protection. True derivative works do seem meritorious of protection but their similarity to the preexisting work might otherwise undermine that claim – non-protection by association. E.g. Rosencrantz & Guilderstern are Dead, or Friday. Or a parody.

          2. Pickett approach: one can start with fair use and get nearer and nearer infringement without actually violating until one gets to the safe harbor of derivative works which grant protection under the umbrella of the original to something that without the similarity (albeit fair use) to the original may be in danger of being considered useless. And the safe harbor would allow what would otherwise be infringement. So it is the (innocent) similarity to the original that grants derivative protection – protection by association.

            1. But non-discrimination says we don’t inquire into the work’s merit (i.e., is it “useless” under Pickett principle). So under that standard a work which is not original enough to qualify for independent protection should be infringing.

          3. Synthesis: The key seems to be that a derivative work is original in its own right, but due to inspiration by the original veers too close for comfort  separate protection. What is not protected are works that start out too close, like a costume of the character, and then supposedly depart just far enough for the claim to be made of originality & separate protection.

    1. COMPILATIONSA "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. The term "compilation" includes collective works. § 101.

      1. Three requirements:

  • Collection of facts or data

  • Selection or arrangement of the facts

  • Creation thereby of original work of authorship

          1. Note the “or”: the originality can be restricted to selection, or arrangement – all of these elements do not have to be original.

      1. Compilations protect original selection or arrangement of facts or data. Does not provide protection based solely on the labor of arrangement, but requires originality of selection/ arrangement. Feist Publications v. Rural Telephone Service (US 1991) [telephone directory listings are not protected because the selection is based on geographic region and the arrangement is alphabetical]

          1. O’Connor explicitly rejects the “sweat of the brow” doctrine

          2. Intent in Feist is to protect consumers by limiting protection of information. Ginsburg suggests in No “Sweat”? that it may have had the opposite effect in two respects: (1) elimination of “sweat” copyright means that compilers will restrict access to protect their work, and (2) to gain protection compilers will introduce subjective elements of originality that will add to the cost, and be passed onto consumers who will have to pay for aspects they may not want or need.

      2. Sufficiently novel arrangement of facts in the public domain will qualify the arrangement for protection. Trebonik v. Grossman Music (ND OH 1969) [arrangement of guitar chords on a wheel classified by root chords is a novel arrangement and can be copyrighted]

      3. Creative selection of individually uncopyrightable text/ art can be protected as a compilation. Roth Greeting Cards v. United Card Co. (9th 1970) [although individual greeting cards were not protectable, selection and combination of the cards in a set is original and copyrightable]

      4. The discretion that goes into selecting, reconciling and presenting data creates an original work which can be protected. Mason v. Montgomery Data (5th 1992) [real estate maps are protected]

          1. Maps are arguably part of the “original intent” of the Copyright Clause—but difficult to swallow in light of the changed nature of maps.

          2. Court rejects dist. court merger doctrine argument. If all maps are compilations, perhaps we treat some details (i.e., roads and towns) like scenes a faire and protect more discretionary aspects.

      5. INTERNATIONAL APPROACH: neither Berne nor TRIPs require originality.

Three Tiers of Originality:

  1. Derivative works held to a higher standard of originality (see Feist)

  2. “Regular” works are held to the low constitutional floor test (see Catalda)

  3. Compilations seem to be held to an even lower standard (see Roth)



      1. Author is the source of “original individual conception” even if that individual did not exercise control over all aspects of creation. Lindsay v. Titanic (SDNY 1999) [designer of concept and storyboards is the author of film project despite not going underwater to film it]

          1. This abstract concept of “authorship” creates tension between protecting the creators of a work and protecting economic interests in the work.

    1. JOINT AUTHORSHIP—A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

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