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 of ways to express and embody the idea in a work law doesn’t want to protect the expression that communicates it

  • Usually applies to factual and functional works.

  • Sometimes just give thin protection - must replicate EXACTLY to get infringement

  • The more narrowly you define the idea, the more likely to find a merger problem (lots of wiggle room about fighting what the idea is)

    • broader the idea, more ways there are to express the idea less likely to have merger doctrine problem

    • Fewer idea is less way to express the idea more likely to have merger doctrine problem

    • “Where the uncopyrightable subject matter is very narrow, so that ‘the topic necessarily requires,’ if not one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.

  • Policy Implications of having more or less protection:

    • Can usually argue about what idea is, which gives you wiggle room. BUT makes it unpredictable.

    • Do you want author to monopolize the idea itself?

Scènes à Faire – expressive

• Copyright does not extend to the “incidents, characters or settings which are as a practical matter indispensable, or at least standard in the treatment of a given topic.” (Atari, Inc. v. N. Am. Phillips Consumer Elecs., 672 F.2d 607, 616 (7th Cir. 1982))

• To allow protection for such aspects of a work would unduly restrict subsequent authors in building their own works within general settings with which their audiences will relate

• “Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx.” (Walker v. Time Life Films, 784 F.2d 44, 50 (2d Cir. 1986))

• Can’t protect if you want to do a scene in a certain context, you need to put it there to make it realistic

Categories of Works of Authorship

• 17 U.S. Code § 102(a) Subject matter of copyright: In general

(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. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

• Not exhaustive - ‘include’ = illustrative and not limitative, sets out general area of copyrightable subject matter, but with sufficient flexibility, areas overlaps

  • Category can affect the right you get, e.g. sound recording

  • Infringement are considered differently

  • Offers room tailoring protection on different types of work

• § 103 Compilations and Derivative Works

• Distinguish the work of authorship from the form in which it is fixed (i.e. literary work vs. book, musical works vs. sheet music or recording)

1. Literary Works

   • s.101 definition: “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects,

     • such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied” includes: computer software code,

   • Legislative history: literary work includes:

     • catalogs, directories, and similar factual reference, or instructional works and compilations of data

     • computer databases, computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas

     • but words and short phrases such as names, titles and slogans are not subject to copyright

   • Scope: literal text and non-literal elements of work (e.g. structure, sequence, organisation)

     • But doesn’t extend to the underlying ideas

     • Words of a story and other expressive elements of its text are clearly protectable, but other elements, e.g. fictional characters, are not as clear.

2. Musical and Sound recording

   • s.101 ““Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.”

     • Important distinction made when a sound recording is made of the performance of another work.

     • Author of sound recording is different person than the author of underlying work. If Fan records Poet reading poetry, Fan is the author of a sound recording with a separate copyright from Poet’s copyright in the poem (literary work)

     • Sound recording is fixed in a phonorecord, not a copy.

     • Limitations:

       • §114(b) Reproduction right in sound recording is infringed only by a literal copy, one that recaptures the actual sounds fixed in the sound recording

         • Elaboration: Nonliteral copying will not infringe the copyright in the sound recording BUT a recording is likely to be not only a phonorecord of a sound recording, but also a copy of another copyrighted work. If Veni wrote the opera and then recorded a performance, he has a copyright in the musical work and one in a sound recording. Anyone who performs opera in public will infringe Veni’s copyright in the musical work, although not in the sound recording

       • §106(6) Public performance is limited to the right to perform the copyrighted work publicly by means of a digital audio transmission. Thus, a business playing a CD of music on a stereo or a radio station does not infringe the sound recording copyright.

   • Musical recording is not defined in statute

   • Important distinction between musical work and sound recording:

     • Musician who composes a song is the author of a musical work. A producer who records sound is author of sound recording.

     • A producer who records the musician performing a musical work is the author of the sound recording.

     • If recording is put on the CD, the CD is a phonorecord of both the musical work and the sound recording. Anyone who copies the recording potentially infringes two copyrights: musician’s copyright in the musical work and the producer’s copyright in the sound recording.

   • Limitations:

     • §115: Compulsory licensing for non-dramatic musical works. Where recordings of song have been distributed, copyright in musical work is subject to compulsory licensing scheme.

       • Anyone can record and sell their own cover versions of the song provided that they pay the royalties

       • Can only make a cover (make your own version), doesn’t allow you to make a copy of the work!!

     • Public performance right: NO compulsory license for the performance of the underlying musical composition-must go through ASCAP

     • §108: libraries can make certain reproductions of work for preservation

3. Dramatic Work

   • Undefined in statute, but described as “portraying a story by means of dialogue or action”

   • E.g. plays, operas

   • Including accompanying music, but the music could be copyrighted separately as a musical work

4. Pantomimes and Choreographic Works

   • Protected by 1976 Act, but must be fixed in a tangible medium of expression

     • either in notation (system of symbols representing movements) or

     • in a film recording

   • Impromptu, unrecorded dancing is not a protectable work

   • Bikram’s Yoga Coll of India v Evolation Yoga: Un-copyrightability of “Bikram yoga” a sequence of 26 yoga positions + 2 breathing exercise

5. Pictorial, Graphic, and Sculptural Works

   • s.101 definition “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans

Such works shall include

• works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned;

• the design of a useful article, as defined in this section, 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 article”

• Utilitarian function exception

  • such works are not protectable to the extent that they have a utilitarian rather than artistic function - subject to useful article doctrine

6. Motion Pictures and Other Audiovisual Works

   • § 101 “Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

   • § 101 “Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

   • Rights to photographs that makeup the movie and the soundtrack

     • e.g. movies, film, video games, slideshows

     • movie production would involve a lot of transaction: actor rights, photo rights music rights

   • Requirement:

     • Must have visual component but need not have sound

       • When work does have sound, it is deemed part of the audiovisual work as opposed to falling into category of sound recording copyright

     • Require use of a machine to show it

   • Growing importance - computer software, game and multimedia products

Useful article doctrine [08:00] P.561

• Combine PGS work and useful purpose if give copyright protection to something useful may be overprotecting (almost like patent protection)

• § 102 PGS work

  • includes “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans…”

• § 101 A “useful article” is

  • an article having an intrinsic function that is not merely to portray the appearance of the article or to convey information.

• § 101 Pictorial Graphic Sculpture works

  • the design of a useful article . . . shall be considered a PGS 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 article.

• H.R. Rep. 94-1476, 55 [Read from P.562]

  • Unless the shape of an automobile, airplane, lady’s dress . . . or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of the article, the design would not be copyrighted…

• Mazer v. Stein (Supreme Court 1954) P.562

  • Facts: Stein created sculptures of ballet dancer, registered at copyright office as a work of art, most were sold as the base of a lamp. Mazer copied this and argue Stein cannot have copyright over this.

  • Held: Statutes used as bases for fully equipped electric lamps were copyrightable, even though the lamp itself was a utilitarian mass-produced...

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