This website uses cookies to ensure you get the best experience on our website. Learn more

LLM Law Outlines > Intellectual Property (IP) Law Outlines

Copyright Requirements Outline

Updates Available

This is an extract of our Copyright Requirements document, which we sell as part of our Intellectual Property (IP) Law Outlines collection written by the top tier of NYU School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Intellectual Property (IP) Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

02. Copyright Requirements: Originality, Fixation, and Formalities

P. 492-527; 17 U.S.C. §§ 101 (“fixed,” “publication”), 102(a), 104A, 401-402, 406-409, 411-412

A. Introduction

Brief History of Copyright Protection

  • Invention of the printing press in England made it cheaper and easier to have mass production of books

    • Second comers can easily print a book without author’s permission people starting to get worried

    • Crown also worried the information being distributed through the printing press wanted some censorship control over what is being printed

    • Crown give charter to companies the right to print but authors are not getting much out of this and criticized this law first copyright law:

    • 1710 Statute of Anne: proposed by authors, giving them control over their work. First shift from publisher right to author’s right – also start of the romantic notion of creativity and authorship

      • Two 14 years period (with option to renew if author survived by the end of the period) created public domain – copyright would expire after a period of time

  • IP clause became part of the US Constitution

    • Congress enacted a Copyright Act 1790

      • Short amount of time: similar to Anne: two 14 year terms + another 14 years.

      • Need to register and deposit work

      • Narrow subject matter: only copyright to maps, charts and books

      • Narrow right: only protects exact publication, doesn’t cover translation, or slight alterations

  1. 1909 Copyright Act: still govern some work nowadays

    • protects ‘all writings’ (including work in progress + speeches) music, performance

    • initial term 28 yrs + 28 yrs upon renewal

    • failure to provide proper notice upon publication of a work forfeit protection

    • Requirement of registration + notice + domestic manufacturing requirements conflicts with European Berne (which prohibits any formal prerequisites to copyright enforcement) US wasn’t eligible for Berne membership

  2. 1976 Act and Related Reforms

    • author’s right of publication, reproduction, distribution, performance, display, derivative work

    • expanded scope and duration of protection: protects all authorship/ as long as original

    • all written works became protected upon being “fixed in a tangible medium of expression”, even if unpublished [previously requires publication to trigger copyright protection]

      • trigger: publication (1909) fixation (1976)

    • duration: expanded to life of author + 50 yrs or 75 yrs if anonymous

      • addition 20 yrs protection in 1998 life of author + 70 years

    • expansion often due to content producers, asking for greater protection

    • weakened IP protection by establishing several new compulsory licensing regimes, approving numerous exemptions from liability, codifying fair use doctrine (from case law), preempting most case and common law protections that impinge upon federal copyright protection

    • incorporated protection for computer programs

    • [Note might have to other legislation other than 1976 nowadays]

  3. Berne Convention Accession 1989

    • US didn’t want to join, as it includes mural rights

    • US joined in 1989, had to amended its IP law to comply with min standards

    • Reduce formalities, extended protection for moral rights and architectural works, restoring copyright for foreign works under protection in the source country but in the public domain in the US

  4. The Digital Age led to amendments to Copyright Act

    • Audio Home Recording Act 1992

    • Digital Performance Right in Sound Recordings Act 1995

    • No Electronic Theft Act 1996

    • Digital Millennium Copyright Act 1998

Sometimes not so artistic, but functional – can still be creative

An Overview of the Copyright Regime

  • Elements of protectable copyright

    1. copyrightable subject matter: author’s particular expression of an idea (not idea itself), e.g. literature, song, dance, sculpture, graphics, painting, photography, sound, movies, computer programming

    2. threshold for protection: little originality + fixed in a tangible medium of expression

    3. formalities:

      • notice required on all work published before 1989

      • registration not required for validity, but required of US authors prior to instituting an infringement suit

      • deposit of copies of work required to register

    4. authorship and ownership:

      • work must have been created by the party bringing suit, or

      • rights in work must have been transferred by author to party ringing suit

      • for ‘works made for hire’ – employer is considered the author and owner of the work (not the original creator)

    5. Duration of copyright:

      • life of author + 70 yrs; or

      • 95 yrs from first publication if anonymous/ pseudonymous/ work made for hire

      • or 120 yrs from year of creation, whichever occurs first

  • US Copyright Office register works, but doesn’t conduct search of prior art assess validity

    • copyright is protectable at the moment the work is created

  • Ownership of valid copyright confers the following rights:

    1. reproduction: exclusive right to make copies

    2. derivative works: exclusive right to prepare derivative works (based on original, but in different forms altered, e.g. translation, movies based on book)

    3. distribution: right to control sale and distribution (original, derivative, licensed), but no right to resale

    4. performance and display: right to control public (but not private) performance and display of work, including computer programs and other audiovisual works (but no right to prevent)

    5. anti-circumvention: Copyright Act prohibits circumvention of technological protection measures designed to safeguard digitally encoded works, subject to several exceptions

    6. moral rights: attribution to their work, prevent intentional distortion/ modification of their work

  • Protected against direct and indirect infringement, but rights are limited

    • fair use doctrine: allow leeway for criticism, comment news reporting, teaching… apples a balancing test to deterine whether a use of copyrighted material should be permitted without owner’s authorisation

  • Copyright do not give their owner exclusive right to prevent others from making, using or selling their creations

    • only right to prevent unauthorized copying of their work + prevent limited types of uses (e.g. public performance) when derived from copyright owner

    • independent development of similar/ identical work is perfectly legal

Philosophical Perspectives on Copyright Protection

  • Natural obligation/ right

    • Lockean principle: authors deserve to own the works they have created

  • Utilitarian

    • balance between fostering incentives for creation of literacy and artistic works, and optimal use and dissemination of such work

  • reward authors for their work

B. Requirements

Statutory Basis

  • Subject matter of copyright: In general 17SC § 102(a) (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

  • “Copyright protection subsists … in

    1. original works of authorship

    2. fixed in any tangible medium of expression”

(1) Originality

  • ‘Originality’ is not defined in the statute

    • It has to be novel to the world, not a high standard, what court have said it is

    • Work in a mechanical or functional manner ‘sweat work’ lack creativity, despite costly and time consuming Should it be protected by copyright?

  • The Constitutional Basis

    • “To Promote the Progress of Science …, by securing for limited Times, to Authors, the exclusive Right to their respective Writings”

    • An author is “the beginner . . . or first mover of anything . . . creator, originator.” (Remick Music Corp. v. Interstate Hotel Corp. of Neb., 58 F. Supp. 523 (D. Neb. 1944), aff’d, 157 F.2d 744 (8th Cir. 1946))

  • Legislative History

    • “The phrase ‘original works of authorship,’ which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts [under the 1909 Act]. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them….” (H.R. Rep. 94-1476 (1976))

  • Feist Publications v Rural Telephone Service (1991)

    • To qualify for copyright protection, a work must be original to the author

    • Facts:

      • Feist, after failing to license Rural’s white pages listing, used them without Rural’s consent. Feist also includes individual street address, while most Rural’s listings do not. However, 1309/ 46878 were identical to listing, including 4 fictitious listing Rural inserted to detected copying. Rural sued for copyright infringement.

    • Issue: whether the listing is original

    • “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.”

      • Facts are not copyrightable; but compilations of facts generally are

        • To qualify for copyright protection, work must be original: independently created by the author + min degree of creativity. Need not be novel; but cannot be result of copying

        • Facts: no one may claim originality as to facts, as facts do not owe their origin to an act of authorship [discovery]

        • Factual compilations: selection and arrangement, entail a min degree of creativity, are sufficiently original satisfy modicum of creativity

      • Info copied by Feist were not original to Rural not protected by the copyright in Rural’s combined white and yellow pages directory.

        • Rural's white pages did not satisfy the minimum constitutional standards for copyright protection because the information they contained lacked the requisite originality, as Rural had not selected, coordinated, or arranged the uncopyrightable facts in any original way.

          • Alphabetical order is just convention, and doesn’t have min degree of creativity

        • Despite it is useful, it is not creative

        • Despite valid copyright, a subsequent complier remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work doesn’t feature the same selection and arrangement

      • Elements of infringement

        1. ownership of valid copyright

          • contains foreword text, original material in its yellow pages advertisements

        2. copying of constituent elements of the work that are original

          • data does not owe its origin to Rural, they are uncopyrightable facts

          • here, white pages directory does not have the slightest trace of creativity failed to satisfy the minimal degree of creativity not original [despite being useful]

          • Also, rural did not select to publish names and telephone numbers of its subscribers, but was required to do so by state law not original

          • Arranged in alphabetical orders not creative (old practice)

    • Standard of originality is low usually an issue for functional

Originality = independent creation + modicum of creativity

What is Originality?

  1. Independent creation of work:

    • Author is entitled to copyright if independently contrived a work completely identical with what went before; similarly, no right to prevent another from publishing identical work, if not copied from his Sheldon v Metro-Goldwyn Pictures

      • author not have copied the work from some other source

      • “If by some magic a man who had never known it were to compose anew Keat’s 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

    • Why?

      • Labor theory: since both labored, both created something and deserve copyright protection

      • Personality theory: each person is investing something into the work and associate themselves with their work each deserve a property right despite

      • Utilitarian theory: Don’t want to require creator to search before they create (may be impossible to search) to ensure the work would be protected by copyright; despite waste of effort to create what already exist. [Different from Patent Law]

      • No copyright protection for facts

        • Historical Facts and research:

          • copyright doesn’t protect historical facts as such info is not original some courts denied copyright protection for historical research

          • Miller v Universal Studio Universal Studio produced a film based on a book written by researcher and victim describing a bizarre kidnapping and rescue court held research not copyrightable

          • Hoehling v Universal city Studio No originality – “A fact does not originate with the author of a book describing the fact. Neither does it originate with one who discovers the fact. The discoverer merely finds and records. He may not claim that the facts are original with him although there may be originality and hence authorship in the manner of reporting”

            • Facts: Author develops theory that someone sabotaged the Hindenburg. Is his theory copyrightable?

            • Holding: discoverer may not claim that facts are original - can't say that he independently created these facts. Even if there is originality (and hence authorship) in the manner of reporting the fact, even if historian has to self-select facts to weave into a story when previously there was no story

            • Hoehling could copyright manner of expression they chose to convey things i.e. selection/arrangement of facts (but, thin protection)

            • Utilitarian perspective that goes against court decision: we want to encourage people to seek out hidden facts and they will do this through copyright protection

          • never independently create a fact + no right to create a fact

          • effort and time to put facts together – historians and reporters may be motivated by salary, tenure, reputation (even without copyright protection)

        • Don’t want exclusive right given to first fact finder (who may have spent more money and time to put story together), want to allow others to check those facts

        • Possible counterargument: But: facts depend on question being asked

  2. Reflecting a modicum (small quantity) of creativity:

    • Low threshold even a slight amount would suffice

    • Even if merely trivial variation, something recognizably his own; Court would not judge the artistic merits of a work Alfred Bell & co v Catalda Fine Arts

    • Creativity in choices of a photographer Burrows-Giles Lithogrpahic Co. v Sarony (1884)

    • taking a photograph involve making a lot of choices, pose, background, light, shades

    • Facts: (Oscar Wilde photo) yes creativity b/c photog choices – setting, pose, light. Photo is made entirely of the photographer’s own intellectual conception

    • Counter – but this is just a representation of OW sitting there

    • Holding: SOME photos are copyrightable

    • Photographer had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art

    • Creativity in choices for a video game Atari Games Corp v Oman (1992)

      • Passes the level of creativity required - design of the game, colors used…etc.

      • Facts: Video game paddle and ball video game created by the plaintiff. is this creative?

        • Not creative b/c programmer just makes instructions – images depend on player participation + programming code does not include the end-image

        • yes creative b/c the images come from the programmer’s own visions/creations

      • Holding: Breakout was a copyrightable work, because breakout consists of a series of shapes and images in a particular sequence alongside audio, the court found it met the requisite level of copyright

    • De minimis expression

      • Court rarely fund literary or artistic works to fall below the de minimis originality threshold of copyright law

        • Bleistein v Donaldson Lithographing (1903) “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the work of pictorial illustration, outside the narrowest and most obvious limit”

      • Setting the bar low encourages creation

      • E.g. rhythms; words and short phrases (names, titles, and slogans); menu items

    • Meshwerks v Toyota Motor Sales

      • Facts: Meshworks argued that it had copyright protection for “unadorned, digital wire-frames of Toyota’s vehicles" which had been commissioned by the car manufacturer’s ad

      • Holding: not original if artist affirmatively tries to copy. no creative choices here, not like in Oscar Wilde photograph

      • Despite a lot of time taken to create a digital wireframe required a lot of skills, but the car existed

      • It was a very good copies of Toyota’s cars the artist’s intent was to model the car as it was in reality, not to create an artistic commentary not independently created, no modicum of creativity

      • realistic art seems to have a harder time to get copyrighted

  • Originality intent – Why only seek to promote creative rather than accurate maps and charts? If accuracy and not creativity is valued, is copyright the right vehicle?

  • Is anything truly original? all authorship derives from the work of those who came before

  • Protectability of created facts: many facts clearly owe their origin to discrete acts of human originality

  • Fictitious facts and copyright estoppel: an author writes a manuscript that she holds out to the world as fact, though the work is fictional should that work be protected by copyright?

  • Policy Analysis of database protection: ProCD v Zeidenberg allow database vendors to protect by contract what they cannot protect by copyright, can sue for breach of contract even if the database is composed entirely of unprotected facts. Alternatively, 1996 Legal Protection of Database in Europe protect sweatworks specifically

  • Copyright protection for maps: Mason v Montgomery Data sufficient creativity in the selection, coordination and arrangement of the facts + graphic artistry of the maps sufficiently original to qualify for copyright protection

(2) Fixation in a Tangible Medium of Expression

  • Why require fixation?

    • Policy: to preserve knowledge and culture

    • Constitution: inherit requirement of fixation as it requires writing. Implies that a fixed item is required. Congress given power to give rights to authors - implies human author not a work produced by a mechanical process or random selection

    • Work is abstract

      • E.g. musical composition – has to be fixed into sheet music, sound recording

      • Prevents protection of mere ideas

    • Put public on notice, so that they can avoid infringement

    • Original works of authorship

    • Evidence: Makes litigation and infringement suits easier – fixation helps in proving authorship

  • History:...

Buy the full version of these notes or essay plans and more in our Intellectual Property (IP) Law Outlines.