§ 2.03 General Copyright Principles [1] Subject Matter of Copyright

• Jurisdiction: United States
• Publication year: 2020

§ 2.03 General Copyright Principles [1] Subject Matter of Copyright

The Copyright Act of 1976 (Act or 1976 Act)⁸⁴ provides the statutory basis for obtaining copyright protection in the United States. Section 102 of the Act extends copyright protection to "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."⁸⁵ Works of authorship specifically include the following categories: (1) literary works;⁸⁶ (2) musical works, including any accompanying works; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works;⁸⁷ (6) motion pictures⁸⁸ and other audiovisual works;⁸⁹ (7) sound recordings;⁹⁰ and (8) architectural works.⁹¹ While this list is not "exhaustive," the Second Circuit has observed that "categories of creative efforts that are not 'similar [ ] or analogous to any of the listed categories' are unlikely to fall within the subject matter of federal copyright protection."⁹²

It specifically excludes "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."⁹³ Thus Copyright protects a specific form of expression, it does not protect the underlying ideas or thoughts.⁹⁴ "[U]nlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.⁹⁵ The idea/expression dichotomy has two constitutional foundations: the Copyright Clause and the First Amendment. Under the Copyright Clause, "[t]he primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.'"⁹⁶ "To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."⁹⁷ At the same time, the idea/expression dichotomy "strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."⁹⁸ Courts have excluded the following from copyright protection: ideas for television programs,⁹⁹ including ideas for reality-based programs,¹⁰⁰ ideas for novels or plays,¹⁰¹ systems of bookkeeping,¹⁰² systems of shorthand,¹⁰³ systems or methods of selling a product,¹⁰⁴ forms for reporting sports statistics,¹⁰⁵ yoga poses and breathing exercises,¹⁰⁶ and plans for marketing or research.¹⁰⁷ Similarly, facts in the public domain are not copyrightable.¹⁰⁸

Where there are a very limited number of way in which an idea can be expressed, the idea and expression are considered to have "merged" and no protection is given to the expression.¹⁰⁹ This concept reflects the understanding that if protection was to be given to the idea under these circumstances, it would "effectively accord protection to the idea itself" which is not permitted under copyright law.¹¹⁰ For example, where the plaintiff employed the "one way to construct a useful business directory, the arrangement has 'merged' with the idea of a business directory and thus is uncopyrightable."¹¹¹ A similar doctrine, scenes a faire, applies principally to fictional works such as novels and dramas and withholds protection from those elements in such works—typically incidents or character attributes—that are preordained by the work's unprotectible ideas—typically basic plot or character type.¹¹² For example, "foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction. As such, they are not copyrightable except to the extent they are given unique—and therefore protectible—expression in an original creation."¹¹³

[a] Originality

All works eligible for copyright protection must be original. Assessing whether a work is original is a matter of law.¹¹⁴ "'Original' in reference to a copyrighted work means that the particular work 'owes its origin' to the author. No large measure of novelty is necessary. . . . It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. . . . Originality in this context means little more than a prohibition of actual copying."¹¹⁵ In other words, originality does not require, novelty or ingenuity.¹¹⁶ Originality in the copyright sense means only that the work owes its origin to the author, i.e., is independently created and not copied from other works.¹¹⁷ Therefore, a work is original and may be copyrighted, even if it is completely identical with a prior work, provided it was not copied from such prior work but is rather a product of the independent efforts of its author.¹¹⁸ "The requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark. . . ."¹¹⁹

In Feist Publications v. Rural Telephone Service Co.,¹²⁰ which involved a determination of whether the copying of 1309 names, towns, and telephone numbers from a telephone directory constituted an infringement, the Supreme Court specifically rejected the "sweat of the brow" doctrine pursuant to which a work would be deemed copyrightable based on the amount of effort expended, for example, in compiling the data. The Court held that the alleged originality in the work's alphabetical coordination and arrangement of the facts was not even "remotely creative" and utterly lacked even the most minimal creative spark necessary to be worthy of copyright protection.¹²¹ In a departure from existing precedent, the Court stated that the work must possess "at least some minimal degree of creativity."¹²² Therefore, for example, in the case of a compilation,¹²³ there must be some originality in its selection, coordination or arrangement. Selection implies the exercise of judgment in choosing which facts from a given body of data to include in a compilation.¹²⁴ Thus, where "'the selection process imbues a compilation with the requisite creative spark, the compilation may be protected so long as there are indicia that principles of selection (other than all-inclusiveness) have been employed.'"¹²⁵ Further, certain basic elements fall within the public domain and are therefore not copyrightable.¹²⁶

Similarly, a "derivative work"¹²⁷ may be entitled to copyright protection when it meets two criteria: (1) "the original aspects of a derivative work must be more than trivial," and (2) "the original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material."¹²⁸ Both prongs arise out of Copyright's basic focus on originality. The first prong asks "whether the derivative work is original to the author and non-trivial" and the second prong ensures that the derivative work author does not hinder the original copyright owner's ability to exercise all of its rights.¹²⁹

[b] Fixation

The second requirement for copyrightability is that the work "be fixed in a tangible medium of expression, either now known or later developed."¹³⁰ It is settled that a copyright can exist only on a perceptible, tangible work. It cannot exist in a vision. "When Picasso made his deed of gift the monumental sculpture was undeniably only a vision and thus not subject to copyright protection. The maquette, however, was an original, tangible work of art which would have qualified for statutory copyright protection."¹³¹ The essential requirement is that there is a physical embodiment of the work, regardless of whether, for example, the images cannot be viewed with the aid of a machine.¹³²

The work must also be fixed for "more than transitory duration"¹³³ which may become an issue in the digital environment. For example, the Ninth Circuit has held that an ISP that operates as a mere conduit of copyrighted material is not an infringer because any unauthorized copying under such circumstances "is a temporary, automatic response to the user's request and the entire system functions solely to transmit the user's data to the Internet. Under such an arrangement, the ISP provides a system that automatically transmits users' material but is itself totally indifferent to the material's content. In this way, it functions as does a traditional telephone company when it transmits the contents of the users' conversations. While temporary electronic copies may be made in this transmission process, they would appear not to be 'fixed' in the sense that they are 'of more than transitory duration,' and the ISP therefore would not be a 'copier' to make it directly liable under the Copyright Act."¹³⁴

The court distinguished this situation from a computer owner who downloads copyrighted software onto his computer and thereby "possesses" the software. Under such circumstances, the computer owner possesses the software, which then functions in the service of the computer or its owner, and the copying is no longer of transitory nature.¹³⁵ Thus, according to the court, "transitory duration" is both a qualitative and quantitative characterization. "It is qualitative insofar as it describes the period during which the function occurs, and it is qualitative in the sense that it describes the status of transition. Thus, when the copyrighted software is downloaded onto the computer, because it may be used to serve the computer or the computer owner, it no longer remains transitory.¹³⁶ This, however, is unlike an ISP, which provides a system that automatically receives a subscriber's infringing material and transmits it to the Internet at the instigation of the subscriber."¹³⁷

[2] Formalities

With the amendment to the 1976...