General Principles

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages9

Copyright extends to all varieties of literary, artistic and musical works.

To be eligible for copyright protection, however, such works must satisfy additional criteria, which find their source in the constitutional provision empowering Congress to enact copyright legislation. Article I, section 8, clause 8 of the Constitution gives to Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Not only does this provision limit the duration of the copyright that Congress may authorize, but it also requires that the congressional grant of copyright be to "authors" for their "writings." U.S. copyright law has therefore always required that a work manifest "original authorship" in a special sense, to be discussed below, and that it be "fixed" in some tangible form. Indeed, precisely the constitutional requirements are reflected in the language of section 102 of the Copyright Act: "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."

Original authorship

The constitutional terms "author" and "writing" were given very broad interpretations by the first Congress, which in the first copyright statute, enacted in 1790, granted protection to "maps, charts and books." Those terms were also broadly construed by the Supreme Court in two seminal, and relatively early, decisions. In Burrow-Giles Lithographic Co. v. Sarony,[2] decided in 1884, the Court was confronted with a constitutional challenge to Congress's inclusion of photographs in the Copyright Act. It was argued that the photographic process was a purely mechanical one requiring no authorship and that a photograph was not a "writing" as that term was conventionally understood. The Court, however, held that an author is anyone "to whom anything owes its origin," and that a writing is any "production" of an author that includes "all forms of writing, printing, engraving, etching. &c.. by which the ideas in the mindl of the author are given visible expression." The Court noted that the photograph in litigation-a posed portrait of Oscar Wilde-exhibited "harmonious, characteristic and graceful" placement of its subject and, rather than a purely mechanical reproduction, was "an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author." Justice Holmes expanded the concept of "authorship" even further in Bleistein v. Donaldson Lithographing Co.,[3] in which the Court upheld copyright in a color poster drawing of circus performers. Even if the performers had been drawn from life while actually engaged in their circus endeavors, the posters would not for that reason fall outside copyright protection any more so than would a portrait painted by Velasquez or Whistler. "The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright...." Although it was argued that the poster should be disqualified from copyright because it was a mere advertisement and not a work of fine art, Holmes rejected this argument in an often-cited and important passage:

A picture is none the less a picture, and none the less a subject of copyright, that it is used for an advertisement...

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to missappreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.... At the other end, copyright would be denied to...

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