Protecting the Public Domain and the Right to Use Copyrighted Works: Four Decades of the Eleventh Circuit's Copyright Law Jurisprudence

• Publication year: 2021

Protecting the Public Domain and the Right to Use Copyrighted Works: Four Decades of the Eleventh Circuit's Copyright Law Jurisprudence

David E. Shipley
University of Georgia School of Law, shipley@uga.edu

Protecting the Public Domain and the Right to Use Copyrighted Works: Four Decades of the Eleventh Circuit's Copyright Law Jurisprudence

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PROTECTING THE PUBLIC DOMAIN AND THE RIGHT TO USE COPYRIGHTED WORKS: FOUR DECADES OF THE ELEVENTH CIRCUIT'S COPYRIGHT LAW JURISPRUDENCE

David E. Shipley^*

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TABLE OF CONTENTS

I. THE ORIGINALITY STANDARD....................................................................71

II. THE ELEVENTH CIRCUIT'S RIGOROUS APPLICATION OF FEIST............75

A. COMPILATIONS - DIRECTORIES, CATALO GS, AND OTHER LOW AUTHORSHIP WORKS.............................................................................76
B. SOFTWARE INFRINGEMENT AND FEIST.............................................83
C. FEIST AND THE SCOPE OF COPYRIGHT PROTECTION FOR ARCHITECTURAL WORKS.....................................................................88
D. APPLYING FEIST PRINCIPLES TO OTHER WORKS OF AUTHORSHIP ..................................................................................................................92

III. THE AVAILABILITY OF COPYRIGHT PROTECTION...................................98

A. ANTI-BOOTLEGGING LEGISLATION AND COPYRIGHT'S FIXATION REQUIREMENT........................................................................................99
B. EXPANSION OF THE GOVERNMENT EDICTS DOCTRINE..............101

IV. FAIR USE IN THE ELEVENTH CIRCUIT....................................................108

A. THE FIRST AMENDMENT AND FAIR USE.......................................108
B. PARODY AND FAIR USE.....................................................................110
C. FAIR USE AND THE REPRODUCTION OF WORKS FOR EDUCATIONAL PURPOSES.................................................................115

V. CONCLUSION................................................................................................119

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The United States Courts of Appeals for the Second and Ninth Circuits are the nation's premier appellate courts on copyright law.¹ Leading copyright casebooks include many decisions from these courts on topics like the originality standard, works of authorship, exclusive rights, fair use, and ownership.² For example, the materials on copyright infringement typically cover the Second Circuit's abstractions test from Nichols v. Universal Pictures Corp.³ and its bifurcated approach to substantial similarity from Arnstein v. Porter.⁴ This coverage is typically followed by a comparison with the extrinsic/intrinsic test the Ninth Circuit used in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.⁵

The Second and Ninth Circuits are the primary sources of much of our nation's copyright jurisprudence because of Hollywood and Broadway. The states of California and New York are the principal places of business for much of the entertainment, broadcasting, publishing, media, and technology industries.⁶ With a combined population of almost 60 million people, they are our first and fourth most populous states.⁷ They have high concentrations of creative people in the arts, literature, music, and entertainment.⁸ Californians and New Yorkers are longstanding influencers of social and cultural trends, and readily shape public opinion.⁹

This Article, however, is not about the impact of the Second and Ninth Circuits on copyright law. Rather, it discusses the importance of the copyright law decisions from the U.S. Court of Appeals for the Eleventh Circuit. This

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circuit is important for many reasons, including South Beach, Peachtree Street, Muscle Shoals, barbeque, and college football. The combined populations of Alabama, Florida, and Georgia are over 36 million.¹⁰ These states are racially, ethnically, and culturally diverse;¹¹ and, the music, film, entertainment, media, and technology industries in the region are booming.¹² The musical heritage of Georgia alone includes R.E.M., James Brown, Otis Redding, Little Richard, Ludacris, and the Robert Shaw Chorale.¹³ Georgia has become "Hollywood East," where Deliverance, The Blind Side, and Black Panther were filmed along with The Walking Dead, Stranger Things, and Ozark.¹⁴ Cox Media Group, CNN, TNT, and Tyler Perry Studios are prominent media companies based in Atlanta.¹⁵ The diverse creative culture in these states gives rise to copyright infringement litigation in their federal courts. The U.S. Court of Appeals for the Eleventh Circuit reviews the decisions rendered by the federal district courts in these states.¹⁶

The Eleventh Circuit turned 40 in 2021.¹⁷ This court has rendered many influential copyright law decisions in the last four decades. This Article discusses this court's decisions in several areas. First, this Article reviews the originality standard. Second, it explores the application of the U.S. Supreme Court's Feist

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decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters. Third, this Article analyzes copyright protection for unfixed works. Fourth, it examines the scope of the government edicts doctrine. Fifth, this Article discusses the fair use doctrine.

The Eleventh Circuit's many decisions evidence a consistently rigorous application of the originality standard, the principles announced in the Supreme Court's Feist decision, section 102(b) of the Copyright Act, scènes à faire, and the merger doctrine. Thanks to this rigorous analysis, the court carefully separates the copyrightable expression from the unprotected elements in works of authorship. The court's decisions also interpret and apply fair use generously in the contexts of tensions between copyright and the First Amendment, parody, and the use of protected works in education.

The Eleventh Circuit's copyright jurisprudence adheres consistently to the following fundamental principles. First, the circuit always applies the principle that everyone is free to use whatever is in the public domain.¹⁸ Second, the circuit abides by the principle that copyright protection only extends to creative expression and not to ideas, facts, scènes à faire, and those elements of a work that are standard, routine, commonplace, or dictated by efficiency.¹⁹ Third, the Eleventh Circuit stands by the principle that rewarding to the author is a secondary consideration because the primary beneficiary of copyright is the public.²⁰ Fourth, the circuit follows the principle that the use of a work and the use of a copyright are distinct in that one may use a work's unprotected elements without infringing copyright.²¹ The Eleventh Circuit has thus protected the public domain and everyone's right to use the unprotected elements in a copyrighted work of authorship over the last 40 years.

I. THE ORIGINALITY STANDARD

Shortly before the creation of the Eleventh Circuit in 1981, the old Fifth Circuit decided Miller v. Universal City Studios, Inc.²² This ruling remains important

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precedent in the Eleventh Circuit,²³ and the U.S. Supreme Court cited Miller in its landmark Feist decision in 1991 for the proposition that the originality requirement is the very "premise of copyright law."²⁴ The court of appeals also rejected the sweat of the brow rationale for extending copyright protection to an author's research.²⁵ The court said that protection for directories, compilations, and other fact works is based on the originality of the compiler's selection and arrangement of factual material, and not on the compiler's industriousness in gathering the material.²⁶ The U.S. Supreme Court's influential Feist decision reinforced the court of appeals' explanations for not protecting research and rejecting sweat of the brow.²⁷

Gene Miller, a reporter for the Miami Herald, wrote a book about a young woman abducted from an Atlanta motel and buried alive in a wood and fiberglass capsule for 83 hours while her abductors sought a ransom. The victim collaborated with Miller who spent more than 2500 hours investigating, researching, interviewing, and writing the book. It was titled 83 Hours Till Dawn and published in 1971. A producer for Universal read a condensed version of the book in Reader's Digest and thought it would make a good television movie. This producer gave a copy of the book to a screenwriter. Universal negotiated with Miller for movie rights, but the deal fell through. A screenwriter was then told to write the screenplay without using the book. The resulting movie, The Longest Night, was the Movie of the Week on ABC. Miller sued for copyright infringement, and a jury awarded him $200,000.²⁸

The major issue on appeal was whether the trial court erred by instructing the jury that research was copyrightable.²⁹ A critical sentence in the instruction stated: "Moreover, if an author, in writing a book concerning factual matters, engages in research on those matters, his research is copyrightable."³⁰ The plaintiff testified about his extensive research. The plaintiff's attorney's opening and closing statements touched on the plaintiff's research and said it was copyrightable. The trial court viewed "the labor and expense of the research involved in the obtaining of those uncopyrightable facts as distinct from those facts and more similar to the expression of the facts than to the facts

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themselves."³¹ The 'research is copyrightable' theory was central to the outcome of the trial.³²

The court of appeals stated that "[t]he issue is not whether granting copyright protection to an author's research would be desirable or beneficial, but whether such protection is intended under the copyright law."³³ It rejected protecting research because of the labor of the researcher/compiler. The court acknowledged the difficulty of distinguishing other decisions about compilations...