Copyright Subject Matter Outline

03. Copyrightable Subject matter: Exclusions and Types of Works

MML 528-42, 635-39, 558-79

17 U.S.C. §101 (architectural work, “audiovisual works,” “compilation,” “derivative work,” “literary works,” “motion pictures,” “pictorial, graphic, and sculptural works,” “sound recordings,” “useful article”), 102, 103

Idea-Expression Distinction P.536 [24/01]

• s.102 Subject Matter of Copyright

  • (b) “In no case does copyright protection 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

• Protected expression, not protected for ideas

  • Economically inefficient to protect an idea – there are many method to express an idea

  • unfair to allow someone to monopolize an idea just because they got there first

• Baker v Selden 101 U.S. 99 (1879) P.537

  • Facts: Selden created instruction manual for bookkeeping system which included

    • (1) an introductory essay explaining the system of bookkeeping and

    • (2) attached tables consisting of ruled lines, and headings, illustrating the system and showing how it the system would be carried out; defendant had altered the table slightly with different format/headings for the table

  • Holding:

    • Can claim copyright for the expression: the way of explaining how to use the system, introductory essay and explanatory text about the bookkeeping system.

      • “Where the method is common, any author can express or explain it in his own way”;

      • but copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book

    • No protection for the underlying idea (bookkeeping system itself)

      • “The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself.”

      • The forms themselves: not copyrightable, even though you could argue that they are an expression.

        • BUT court compared forms to other forms that had not been deemed to be copyrightable.

      • Selden’s claim is too broad – would have stopped people from using bookkeeping – should be under patent law and not copyright

        • more scrutinize requirements for patent law

      • “description of the art in a book lays no foundation for an exclusive claim to the art itself (though entitled to the benefit of copyright)”

      • blank account books are not the subject of copyright

      • Such forms was necessary to use the system - to prevent copying of the forms would have the effect of prevent the use of the system - compared with other forms which are not allowed for patent (e.g. music scores)

      • System (should be patented) vs. Expression (copyrightable)

      • “Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way.”

      • “The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself

• Blank Form Doctrine

  • 37 CFR §202(1)(c) “Blank forms, such as time cards, graph paper, scorecards, account book, diaries, bank checks, address book, report forms, order forms… designed for recording info and do not in themselves convey info not copyrightable ineligible for registration”

  • Not just about conveying information, but to convey the info in some way

  • Blank forms which are designed for recording information and do not in themselves convey information. BUT Some forms may convey information either by having expressive instructions or a lot more information on them (i.e. choosing list of diseases to put on medical form might need creativity and may be rewarded copyright)

  • Constitutional: 1^st Amendment – free speech – if we allow protection of ideas unfair, undermining a lot of speech, impracticable, uneconomical

• Nichols v. Universal Pictures Corporation (2nd Circuit, 1930)

  • Facts: The plaintiff is the author of a play, "Abie's Irish Rose,". The defendant produced publicly a motion picture play, "The Cohens and The Kellys," which the plaintiff alleges was taken from it. Both used the idea of love affair between Jewish and Irish

  • Issue: Whether P’s work is copyrightable? Was there infringement?

  • Holding: No. The plaintiff’s copyright did not cover all that might be drawn from her play; its content went to some extent into the public domain.

    • The theme was basically an idea and the characters were mainly stock figures, which have been used for many decades. Similarities tended to be general things, universal concepts, and stereotypical characters.

    • Used the abstraction test (supra) to distinguish idea and expression

      • Different levels of abstraction - Some are more abstract than others

      • Most abstract (Not protected):

        • main idea of the story

        • plot outline

        • subplots

        • general characters and scenes

        • specific character elements

        • text

      • Least abstract (Protectable expression)

    • Filtration: originality, merger, scenes a faire, facts, historical events

  • Must apply abstraction and filtration to remove uncopyrighted material before investigating substantial similarity

Merger Doctrine

• Morrissey v Procter & Gamble (1^st Cir. 1967)

  • Facts: P (Morrissey) is the copyright owner of a set of rules for a sales promotional contest of the sweepstakes type involving the social security number of the participants. P alleged D infringed by copying almost precisely Rule 1.

  • Held: Courts will not provide protection to expression if the idea embodied in the expression can effectively be expressed in only one or a limited number of ways.

    • When there is only one or but a few ways of expressing an idea, then courts will find that the idea behind the work merges with its expression and the work is not copyrightable

  • Idea behind the expression merges with the expression itself

  • Are there any other way to express? How many?

    • Applies when there is only one conceivable way or a drastically limited number...

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