Editing Copyright Law/The Subject Matter of Copyright

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==General Principles==

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 ensure that federal copyright may not be of perpetual duration, but it also requires that the congressional grant of copyright be to “authors” for their “writings.”

United States 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 these constitutional requirements are reflected in the language of section 102(a) of the Copyright Act of 1976: “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 two terms were also broadly construed by the Supreme Court in two seminal, and relatively early, decisions. In ''Burrow-Giles Lithographic Co. v. Sarony'',<ref name="ftn14">111 U.S. 53 (1884).</ref> 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 mind of the author are given visible expression.”<ref name="ftn15">''Id.'' at 58.</ref> 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.”<ref name="ftn16">''Id.'' at 60.</ref>

Justice Holmes expanded the concept of “authorship” even further in ''Bleistein v. Donaldson Lithographing Co.'',<ref name="ftn17">188 U.S. 239 (1903).</ref> in which the Supreme 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 . . . .”<ref>''Id.'' at 250.</ref> 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” (a phrase that was then in the Copyright Act), Holmes rejected this argument in an often-cited and important passage:

{{Quote|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 miss appreciation. 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 pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.<ref name="ftn18">''Id''. at 250–51.</ref>}}

These cases, and many others decided at other times by other courts, firmly establish the principle that “authorship” and “originality,” although requirements for copyright protection, are readily found even in commonplace works of literature, art and music. “Originality” does not require that the work represent any kind of advance over the existing state of our culture; the patent requirements of “novelty” and “nonobviousness” are completely inapt in applying the law of copyright. In another well-known judicial passage, Learned Hand stated:

{{Quote|[A]nticipation as such cannot invalidate a copyright. Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an “author”; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.<ref name="ftn19">Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936). ''See also ''Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).</ref>}}

Indeed, even a copy of a work in the public domain—most obviously, a handmade copy of an old master painting—may be eligible for copyright protection because, as Holmes noted in ''Bleistein'', it is inevitable that the copyist will bring some independent personality to his or her work. Copyright will be afforded if the copy is a “distinguishable variation,” that is, if the author has contributed something more than a “merely trivial variation,” something recognizably “his own.” “Originality in this context ‘means little more than a prohibition of actual copying.’ No matter how poor artistically the ‘author’s’ addition, it is enough if it be his own.”<ref name="ftn20">Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951) (quoting Hoague-Sprague Corp. v. Frank C. Meyer, Inc., 31 F.2d 583, 586 (E.D.N.Y. 1929)).</ref>

The principal source of legislative history for the 1976 Copyright Act, House Report No. 94-1476 (1976)—hereinafter referred to simply as the House Report—endorsed the expansive definition of the earlier cases. In discussing the phrase “original works of authorship” as it appears in section 102 of the Act, the House Report states that this undefined phrase “is intended to incorporate without change the standard of originality established by the courts under the present [1909] copyright statute. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.”<ref name="ftn21">H.R. Rep. No. 94-1476, at 51 (1976).</ref>

Despite this broad disclaimer, the Supreme Court has made explicit what was perhaps to be inferred from the earlier jurisprudence: that, in addition to the requirement of noncopying, there is a requirement that a work show some modicum of creativity before it is eligible for copyright protection. This latter requirement was delineated and applied by the Supreme Court in its very significant decision in 1991 in ''Feist Publications, Inc. v. Rural Telephone Service Co.<ref name="ftn22">'' . 499 U.S. 340, 346 (1991). ''</ref> The issue there was whether a telephone company could claim a valid copyright in a white-page directory that listed names (accompanied by telephone number and town) in alphabetical order. The Court stated:

{{Quote|Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. . . . To be sure, 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, “no matter how crude, humble or obvious” it might be.<ref name="ftn23"> ''Id.'' at 345 (emphasis added).</ref>}}

The Court concluded that even though the plaintiff had engaged in useful efforts, and did not copy its directory from others, “[t]he end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.”<ref name="ftn24">''Id.'' at 362.</ref> Alphabetical sequencing was found to be “time-honored,” “commonplace,” and indeed “practically inevitable.”<ref name="ftn25">''Id. ''at 363.</ref>

The requirement that a work, to manifest originality, must show some modicum of creativity, has been long reflected in regulations promulgated by the Copyright Office. 37 C.F.R. § 202.1(a) states:

{{Quote|The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: . . . Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.}}

Short phrases and commonplace designs are thought to lack minimal creativity, or are likely to have been copied from others, or are too useful as literary or artistic “building blocks” for other works, so that they should be left free for others to use as well, without undue concern for inviting possible litigation.

Not surprisingly, the decided cases manifest some difference of view as to whether the copyright claimant has manifested a “modicum of creativity” or whether the allegedly infringed materials are too short, familiar or commonplace.<ref name="ftn26">''Compare'' Tin Pan Apple Inc. v. Miller Brewing Co., 30 U.S.P.Q.2d 1791 (S.D.N.Y. 1994) (“Hugga-Hugga” and “Brr” are “more complex than [a] single drum beat and . . . in that complexity lies, arguably at least, the fruit of creativity”), ''with'' Perma Greetings Inc. v. Russ Berrie & Co., 598 F. Supp. 445 (E.D. Mo. 1984) (“along the way take time to smell the flowers” not copyrightable).</ref> The more a phrase is generic or descriptive, or the more it gives instructions to accomplish a functional objective, the more that courts are inclined not to permit copyright to interfere with others seeking to make practical use of the language. Courts have thus refused to extend copyright to such phrases as “apply hook to wall”<ref name="ftn27">E.H. Tate Co. v. Jiffy Enters., Inc., 16 F.R.D. 571 (E.D. Pa. 1954). ''But see'' Abli Inc. v. Standard Brands Paint Co., 323 F. Supp. 1400 (C.D. Cal. 1970) (label with instructive phrases held copyrightable).</ref> and “priority message: contents require immediate attention”;<ref name="ftn28">Magic Mktg. v. Mailing Servs., 634 F. Supp. 769 (W.D. Pa. 1986).</ref> and so too for a propped-up cardboard star with a large circle in the middle intended for use as a picture frame.<ref name="ftn29">Bailie v. Fisher, 258 F.2d 425 (D.C. Cir. 1958).</ref> But many courts (perhaps with the admonition of Justice Holmes in mind) are reluctant, at least in the case of graphic works—and now, computerized audiovisual works—to find particular ones too trivial for protection.<ref name="ftn30">'' See'' Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133 (2d Cir. 2004) (basic features of doll’s face); Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989) (remand to Register of Copyrights, who had refused to register video game with simple artwork); Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541 (2d Cir. 1957) (upholding copyright in drawing of cakes on packages). ''But see'' John Muller & Co. v. N.Y. Arrows Soccer Team, 802 F.2d 989 (8th Cir. 1986) (soccer team logo, of arrows-within-arrows, lacking in original authorship).</ref>

=== Tangible medium of expression ===

As already noted, the additional requirement in section 102 of the Copyright Act of 1976—that works to be protectible by copyright must be “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”—is derived from the constitutional requirement that Congress protect “writings,” as that word has been liberally construed. Only rarely has the vast enlargement of the word “writings” been questioned. Justice Douglas did so, in a 1954 concurring opinion,<ref name="ftn31">Mazer v. Stein, 347 U.S. 201 (1954).</ref> in which he stated that it was not obvious to him that “statuettes, book ends, clocks, lamps, door knockers, candlesticks, inkstands, chandeliers, piggy banks, sundials, salt and pepper shakers, fish bowls, casseroles, and ash trays,” all of which had been registered for copyright in the Copyright Office, are “writings” in the constitutional sense.<ref name="ftn32">''Id.'' at 221 (Douglas, J., concurring).</ref> Despite Justice Douglas’s doubts, there is no question that today these objects would be eligible matter for copyright protection, subject to certain limitations on the protectibility of shapes of useful articles.<ref>''See'' [[#Useful articles|Useful articles]].</ref> Moreover, the Copyright Act has since been amended so as to embrace within copyrightable subject matter such “writings” as architectural works, computer programs (even though intended to communicate only with a computer), and sound recordings (even though intended to communicate only to the human ear).

The statutory requirement that a work be “fixed” is of great significance for the application of the statute within our federal system. Federal copyright attaches immediately upon a work’s “creation,” i.e., when it is “fixed” for the first time, with the authority of the author, in a form that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”<ref name="ftn33">Definitions of “created” and “fixed” in 17 U.S.C. § 101.</ref> Before a work is “fixed,” states may grant the author protection against copying under their own statutory or common-law rules; an example would be an improvised comedic performance—or a “live” interview—being secretly taped by a member of the audience. But if, say, the comedic author has reduced his or her routine to writing, or captured it on an audiotape, the illicit recorder in the audience may be pursued only under the federal Copyright Act and only in a federal court.<ref name="ftn34">17 U.S.C. § 301.</ref>

The statute contemplates that a work may be fixed either in a “copy” or a “phonorecord.” The latter is defined in section 101 as a material object in which sounds (other than a motion picture soundtrack) are fixed and from which they can then be communicated, either directly or with the aid of a machine. Examples of a “phonorecord” are a 33-rpm vinyl disk, an audiotape, a compact disk or a computer harddrive on which music has been recorded. A “copy” is a material object (other than a phonorecord) in which a work is fixed and from which it can be communicated. In general, a copy communicates a work to the eye, while a phonorecord communicates a work to the ear. In various situations under the statute, the distinction will matter; but fixation in either kind of tangible object is sufficient to bring a work under the federal statute.

Although the point of “creation” or “fixation” is ordinarily the focal point for dividing federal and state power to bar unauthorized

copying, there is one significant exception. In 1994 Congress— implementing the treaty known as the Agreement on Trade Related Aspects of Intellectual Property (TRIPs)—enacted section 1101 of the Copyright Act, which protects against unauthorized fixing or broadcasting of “the sounds or sounds and images of a live musical performance” (what has come to be known as “bootleg” recordings or broadcasts). Despite the protection being extended to “unfixed” performances (of a musical and not a dramatic nature), and despite the lack of any express time limitation upon the enforcement of the provision, it has been upheld as an exercise of Congress’s Interstate Commerce power rather than its power under the Copyright Clause of the Constitution.<ref name="ftn35">United States v. Moghadam, 175 F.3d 1269 (11th Cir. 1999); Kiss Catalog, Ltd. v. Passport Int’l Prods., Inc., 405 F. Supp. 2d 1169 (C.D. Cal. 2005). ''Contra'' United States v. Martignon, 346 F. Supp. 2d 413 (S.D.N.Y. 2004) (appeal pending).</ref> A contentious debate continues as to whether Congress may avoid the limitations expressly set forth in the latter constitutional provision by anchoring its powers instead under the Interstate Commerce Clause. In any event, section 1101(d) provides that state common-law or statutory rights and remedies directed against such “bootlegging” of live musical performances are not meant to be annulled.

Under the definition of “fixed” in section 101 of the Act, a radio or television broadcast simultaneously recorded by the broadcaster is “fixed” and thus within the coverage of the Copyright Act. For example, a television program of a professional sports event—which embodies original authorship in its camera-work and its selection of which camera images to display to the home viewer—falls within the federal Act by virtue of its taping simultaneously with its “live” transmission. Unauthorized recording or public performance of such a broadcast by others may thus constitute a federal copyright infringement.

The most significant issues arising in recent years regarding the “fixed in any tangible medium of expression” requirement have concerned new technologies. In the 1980s, a number of cases addressed challenges to the “fixed” nature of video games, typically as on view in game arcades but also as played on game consoles for home viewing. Defendants argued that the constantly changing images on the video game screen, subject to seemingly endless varieties of manipulation by the human user, rendered them “unfixed” and therefore freely subject to copying under federal law. The courts, however, consistently held to the contrary. As one court found, “[T]here is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game regardless of how the player operates the controls.”<ref name="ftn36">Williams Elecs., Inc. v. Artic Int’l, Inc., 685 F.2d 870 (3d Cir. 1982).</ref>

More significantly, courts also rejected the argument that the program that creates screen displays (an application program) or that directly operates a computer (an operating-system program) is ineligible for copyright protection because it is embodied in a disk or in computer hardware that cannot be directly deciphered by a human. As to video games, it was held that “The printed circuit boards are tangible objects from which the audiovisual works may be perceived for a period of time more than transitory. The fact that the audiovisual works cannot be viewed without a machine does not mean the works are not fixed.”<ref name="ftn37">Midway Mfg. Co. v. Dirkschneider, 543 F. Supp. 466 (D. Neb. 1981). ''See also'' Stern Elecs., Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982).</ref>

It was a natural step, but an important one, to hold that computer programs more generally—whether application programs or operatingsystem programs—are “literary works” (works “expressed in words, numbers, or other verbal or numerical symbols or indicia”) that are eligible for federal copyright protection once they are “fixed” in computer hardware, such as semiconductor chips.<ref name="ftn38">Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).</ref> The fact that some such programs are designed to interact with the computer and not directly to generate human-readable screen displays does not negate compliance with either the “original authorship” requirement or the “fixed in a tangible medium” requirement of section 102(a) of the Act. A question that remained after the decisions in the 1980s regarding the storage of computer programs within hardware components was whether a work becomes protected by federal copyright when it is entered into a computer’s temporary memory, or random access memory (RAM), which is lost when the computer is shut down. A passage in the 1976 House Report had stated that there was no “fixation” when there was an “evanescent or transient reproduction” on a television tube or in the “memory” of a computer. But more thoroughly explicated passages in the report of the congressionally created Commission on New Technological Uses of Copyrighted Works (CONTU) led to a 1980 amendment of section 117 of the Copyright Act which manifested an intention to treat such a temporary reproduction of a computer program, as is done simply by turning on the computer, as the making of a “copy” (section 117(a)(1)); and a further amendment of that section in 1998 did the same (section 117(c)). (Those amendments accorded exemptions for such copying when unauthorized, if for the expected use of purchased programs or in connection with the “maintenance or repair” of the computer.) Courts, too, have equated temporary storage of a digitally expressed work with the creation of fixed copies. Several decisions concerning liability for communication of works over digital networks have held not only that the storage of works on a webpage produces a “copy” residing on the server that hosts the webpage, but that making the work available to users to download from the webpage is a distribution of copies to the users’ computers.<ref name="ftn39">''E.g.'', Playboy Enters. Inc. v. Sanfilippo, 46 U.S.P.Q.2d 1350 (S.D. Cal. 1998); Playboy Enters., Inc. v. Webbworld, Inc., 991 F. Supp. 543 (N.D. Tex. 1997).</ref> It would follow that when, instead, the transient copy is made by the copyright owner, there is a “fixing” of the work that brings it within the reach of federal copyright.

=== Categories of works ===

After setting forth the requirements of original authorship and fixation in a tangible medium, section 102(a) as originally enacted in 1976 goes on to itemize a number of subject-matter categories for works of authorship, which “shall include” literary works, musical works, dramatic works, pantomimes and choreographic works, PGS (pictorial, graphic, and sculptural) works, motion pictures and other audiovisual works, and sound recordings. “Architectural works” were added in 1990. Most of these categories of works are defined in section 101. Although Congress did not intend these listed categories to exhaust its constitutional power to accord copyright protection, it appears that every litigated claim of copyright protection has been with respect to a work that fits comfortably within the itemized categories, and it is difficult to think of a creative fixed work that does not.

The statutory categories are very broadly defined. “Literary works,” for example, are defined as “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.” The House Report makes it clear that by using the term “literary,” Congress did not intend to import any requirement of “literary merit or qualitative value,” and that the term includes such works as catalogues, directories, and other compilations of data, and that computer programs and databases are embraced within the subject matter of section 102.<ref name="ftn40">H.R. Rep. No. 94-1476, at 54 (1976).</ref> Finally, it should be noted once again that the definition of “literary works” makes a sharp distinction between the work itself and the variety of physical forms in which it can be manifested; copyright protects only the former, while the physical object can be protected under state personal property law (which is distinct from and not preempted by the rights accorded under the federal act).

==The Distinction Between Idea and Expression==

Copyright protects against the unauthorized copying of an author’s “expression,” i.e., the particular pattern of words, lines and colors, or musical notes, and not against the copying of an underlying idea. This is a principal way in which copyright “promotes the progress of science and useful arts,” as contemplated by the Constitution, and is also a principal way in which the scope of copyright protection differs from that of patent protection. Although securing a copyright is easy—all that need be done is to “fix” an uncopied work embodying a “modicum” of creativity—and although copyright lasts much longer than a patent, the scope of copyright protection is much “thinner” because it is limited to the expression. Although copyright protects against more than literal copying, and also bars paraphrase, abridgment and other “derivative works,” it does not afford an exclusive right to ideas, methods, facts and the like, no matter how startling the discovery or arduous the effort.

The major judicial pronouncement of this principle can be found in ''Baker v. Selden'',<ref name="ftn41">101 U.S. 99 (1879).</ref> decided by the Supreme Court in 1879. There, Selden wrote a book describing a new system of bookkeeping, to which he appended certain forms, with various columns and headings, embodying his system. Baker copied the forms with minor changes. Selden claimed that Baker’s forms infringed his copyright; he contended that anyone using his bookkeeping system would have to use forms substantially similar to his. The Court framed the issue for decision as “whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained.”<ref name="ftn42">''Id.'' at 101.</ref> It held that copyright in a work that describes a practical method, system or process does not prevent others from putting that method, system or process into use; to secure such exclusive rights, the inventor must satisfy the more exacting requirements of the patent law.

{{Quote|To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters patent, not of copyright. . . .

. . . He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book.<ref name="ftn43">''Id.'' at 102–03.</ref>}}

The Court went on to hold that if it was necessary for Baker to copy Selden’s forms in order to make use of the latter’s unpatented accounting system, then such copying would not be a copyright infringement.

{{Quote|[W]here the art [that a work] teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

. . .

. . . [The bookkeeping system] was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.<ref name="ftn44">''Id.'' at 103–04.</ref>}}

Despite the Supreme Court’s suggestion that the forms appended to Selden’s book were subject to copyright and could be infringed by persons copying the forms for “explanatory” purposes rather than for “use,” the Court somewhat confusingly concluded its decision by stating: “The conclusion to which we have come is, that blank accountbooks are not the subject of copyright.”<ref name="ftn45">''Id.'' at 105.</ref>

''Baker ''therefore stands for at least three important propositions in copyright law: (1) Copyright in a work does not cover ideas, concepts and systems described therein, but only the form of expression in which they are communicated; (2) if in order to duplicate or put into use an unprotected idea, concept, or system, it is necessary substantially to copy another’s otherwise copyrightable expression, such copying is not an infringement; and (3) blank forms—i.e., forms used for the recording of information rather than for explanation—are not eligible for copyright.

The first of these propositions, the most important, is now embodied in section 102(b) of the Copyright Act: “In no case does copyright protection for an original work of authorship 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.” In the words of the House Report, section 102(b) “in no way enlarges or contracts the scope of copyright protection” under prior law; its purpose “is to restate . . . that the basic dichotomy between expression and idea remains unchanged.”<ref name="ftn46">H.R. Rep. No. 94-1476, at 57 (1976).</ref>

Apart from leaving in the public domain unpatentable or unpatented processes and systems, perhaps the most important impact of the idea–expression dichotomy is in the field of fictional literature. Copyright protects against the unauthorized copying or paraphrasing of a short story, novel or drama; it also bars other unauthorized “derivative works,” such as abridgments and translations; and it even protects the author against the copying of a detailed story line, with its plot incidents and sequences, even though the copyist uses altogether different language for description and dialogue.<ref name="ftn47">Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936).</ref> But copyright''' '''protection''' '''does not bar another from copying the more general patterns, themes or story ideas, or character prototypes.<ref name="ftn48">Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).</ref> Where the line is drawn in fictional works—and indeed in all works, including music and art— between protected expression and unprotected idea is not subject to a litmus test. As Learned Hand said: “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ''ad hoc''.”<ref name="ftn49">Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). ''See generally'' Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005). Application of the idea–expression distinction is discussed at [[Copyright Law/Exclusive Rights of the Copyright Owner#Idea versus expression|Exclusive Rights of the Copyright Owner § Idea versus expression]]</ref>

It is also generally acknowledged that the determination of how generously to mark off protectible “expression” will depend on the nature of the work, for example, whether the work is fictional or fanciful, on the one hand, or is factual or functional, on the other. Too generous a characterization of material in the latter works as protectible expression runs a greater risk of interfering with the statutory policy favoring free access to discoveries, methods, systems and the like. The second principle extracted from ''Baker ''is that even normally protectible material in a copyright-protected work may be freely reproduced when that is necessary in order to use the underlying unprotected system. It is often said in these cases, in which there are limited expressive options, that there is a “merger” between idea and expression, and that the latter becomes unprotected as well. Courts analyze these “merger” situations in at least two different ways: one leads to the conclusion that the work, although copyrightable, is rarely susceptible to infringement; the other denies copyrightability altogether. The former approach is exemplified in ''Continental Casualty Co. v. Beardsley,<ref name="ftn50">'' . 253 F.2d 702 (2d Cir. 1958). ''</ref> ''in which the claim of copyright was in the text of a set of legal and business documents—a bond that had been drafted so as to cover the replacement of lost securities, along with an affidavit, a contract form, and a form of letter and board resolutions. The Court of Appeals for the Second Circuit held that the language of the forms was copyrightable because the forms were not blank as in ''Baker''<nowiki>; but the court also held that because use of the forms necessitated copying them essentially verbatim, such copying would be permitted in order that the underlying business and legal “system” not be monopolized by way of copyright. The court thus granted a “thin” level of copyright protection: </nowiki>

{{Quote|[The pertinent court decisions] indicate that in the fields of insurance and commerce the use of specific language in forms and documents may be so essential to accomplish a desired result and so integrated with the use of a legal or commercial conception that the proper standard of infringement is one which will protect as far as possible the copyrighted language and yet allow free use of the thought beneath the language. The evidence here shows that [the copyist] in so far as it has used the language of [the copyrighted] forms has done so only as incidental to its use of the underlying idea.<ref name="ftn51">''Id.'' at 706.</ref>}}

A different and well-known formulation of the “merger” doctrine is found in the case of ''Morrissey v. Procter & Gamble Co.'',<ref name="ftn52">379 F.2d 675 (1st Cir. 1967).</ref> where the Court of Appeals for the First Circuit held certain rules of a “sweepstakes” promotional contest uncopyrightable. The court found that there were only a limited number of ways that a person could vary the statement of the contest rules while making allowable use of the unprotected contest format. It stated:

{{Quote|When the uncopyrightable subject matter is very narrow, so that “the topic necessarily requires,” if not only 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.<ref name="ftn53">''Id.'' at 678.</ref>}}

The principle that copyright should not be extended even to “expression” when there is a finite range of ways to express an underlying subject matter has also been employed in the field of art, where it has been held that a piece of jewelry in the shape of a bee with small jewels arrayed on its surface reflected an unprotectible “idea.”<ref name="ftn54">Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). ''See ''Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005).</ref>

Closely related to the distinction between protectible expression and unprotectible idea is the distinction between expression and fact. A fact, or a group of facts, no matter how significant or how arduous the effort of discovery, cannot be protected by copyright against use, duplication or communication by others.<ref name="ftn55">Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). The principal exception to this proposition is when the facts are selected, coordinated, or organized in an “original” manner. The issue of “compilation copyright” is discussed ''infra'' pages 32–40.</ref> That facts are unprotectible is supported in part by the exclusion of any “discovery” from copyrightable subject matter by virtue of section 102(b) of the Copyright Act of 1976, and in part by the observation that no person can be said to be the “original author” of a fact which he or she uncovers. Thus, the facts—and even speculations as to facts—that are unearthed by an historian or biographer can be reiterated by a copyist, provided the latter uses his or her own expressive language to do so.<ref name="ftn56">Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980).</ref> Although many courts both under the 1909 and 1976 Acts appeared to sustain copyright in factual research, and in data embodied in compilations, on the basis of “sweat of the brow”—the time, effort and expense invested in unearthing information—this approach has been unequivocally rejected by the Supreme Court. In ''Feist Publications, Inc. v. Rural Telephone Service Co.,<ref name="ftn57">'' . 499 U.S. 340 (1991). ''</ref> decided in 1991, the Court referred to the “fact/expression dichotomy” and stated:

{{Quote|Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. . . . Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted.<ref name="ftn58">'' Id.'' at 349–50.</ref>}}

The final “offspring” of ''Baker ''to be discussed is its holding that “blank forms” are not copyrightable. This is reflected in the text of section 202.1(c) of the Copyright Office Regulations:

{{Quote|The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: . . . blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.}}

The rationale for excluding protection for blank forms is partly that the forms are intentionally designed to be put into use in the course of implementing an unprotectible system. Moreover, a blank form with little or no writing might be thought to lack “original authorship” as required of all copyrightable works. Not surprisingly, courts have disagreed as to whether forms containing various degrees of text and graphic design should or should not be treated as “blank” and therefore unprotectible under ''Baker'' and regulation 202.1.<ref name="ftn59">'' See'' Bibbero Sys. v. Colwell Sys., Inc., 893 F.2d 1104 (9th Cir. 1990). ''Cf.'' ABR Benefits Servs. Inc. v. NCO Group, 52 U.S.P.Q.2d 1119 (E.D. Pa. 1999) (applying Third Circuit’s view that “blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative”).</ref>

=== Copyrightability of computer materials ===

The idea–expression dichotomy—articulated by the Supreme Court in ''Baker v. Selden'' and by Congress in section 102(b) of the Copyright Act—and other copyright doctrines frequently applied to conventional literary and graphic works have also been applied by the courts in ruling upon the copyrightability of computer materials. Courts dealing with computer programs and screen displays have attempted to protect expressive authorship without interfering with wide access to computer features that are either functionally dictated or are at a level of abstraction warranting treatment as an “idea.”

A computer program is defined in section 101 of the Act as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” and is thus one form of “literary work” within the coverage of section 102(a). Whether expressed in so-called “source code” (written and read by a human being) or “object code” (the string of ones and zeroes meant to operate the circuitry of a computer), a computer program may embody sufficient creativity as to justify copyright. This was the intention of the Congress in 1980 when it amended the Copyright Act so as, among other things, to include the above-quoted definition, and in later amendments to the statute allowing certain copying of computer programs but only in narrowly defined circumstances.<ref name="ftn60">''See'' 17 U.S.C. §§ 117(a), (c).</ref> The federal courts of appeals have consistently held that a computer program—the sequence of instructions, not unlike an instructional manual written for humans—is copyrightable.<ref name="ftn61">Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). Perhaps the most illuminating discussion is to be found in the decision of the Court of Appeals for the Third Circuit in ''Apple Computer, Inc. v. Franklin Computer Corp.'', 714 F.2d 1240 (3d Cir. 1983).</ref>

''Baker'', however, teaches that copyright protection for computer programs and related materials should be accorded with an eye toward allowing the use of the program’s underlying principles. There is indeed an obvious facial tension between the definition of a computer program, intended to fall within the subject matter of copyright, and the mandate of section 102(b) that “methods of operation” shall not be given copyright protection. In any event, the House Report makes clear that copyright does not extend protection to the “methodology or processes adopted by the programmer.”<ref name="ftn62">H.R. Rep. No. 94-1476, at 57 (1976).</ref> And, by application of the “merger” doctrine espoused in ''Baker'', if the detailed sequence of instructions in a copyrighted computer program is essentially necessary to implement such an unprotected methodology or process in an efficient fashion, then the program may lawfully be copied by others in the design of other programs.<ref name="ftn63">Perhaps the most thorough and influential treatment of the nonprotection of “ideas” embodied in computer programs, and the application of the merger doctrine in this context, is in ''Computer Associates International, Inc. v. Altai, Inc.'', 982 F.2d 693 (2d Cir. 1992).</ref> On the other hand, “if other programs can be written or created which perform the same function as an Apple’s operating system program, then that [Apple] program is an expression of the idea and hence copyrightable.”<ref name="ftn64">Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir.</ref><ref name="ftn65"> ).</ref>

Courts have applied this analysis so as to protect not only detailed computer-program language but also what have come to be referred to as the “nonliteral” elements of computer programs. By this is meant the structural features of a program that lie somewhere between the detailed commands of the program code and an abstract statement of the functional purpose of the program. This is based on the jurisprudence that, in conventional literary works such as novels and plays, treats the detailed story line and incidents as protectible “expression” and the more general themes as unprotectible “ideas.” The task of drawing the line between idea and expression in literary works of all kinds, including computer programs, is a demanding and somewhat unguided one.<ref name="ftn66">''See'' [[Copyright Law/Exclusive Rights of the Copyright Owner|Exclusive Rights of the Copyright Owner]].</ref>

The idea–expression dichotomy also applies with respect to computer screen displays, and the same principles of “merger” or “constraints” are utilized. If the colorful action scenes depicted on a screen in connection with a video game are essentially dictated by the subject matter—e.g., the appearance of a baseball diamond or football field or racetrack—courts will not protect these elements against copying, given the limited number of ways they can be visually expressed.<ref name="ftn67">Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988) (karate video game); Frybarger v. IBM Corp., 812 F.2d 525 (9th Cir. 1987) (mousetrap video game) (expression that is “indispensable” or “standard” is protectible only against “virtually identical copying”). These cases invoke the ''scènes à faire'' doctrine typically applied in literary infringement cases involving novels, plays and films.</ref> In assessing copyrightability, the court must, however, consider the totality of the visual elements and not simply the discrete components (which might on their own be too “simple” to be protected).<ref name="ftn68">Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992).</ref>

There is less consensus about how best to apply the idea– expression dichotomy in cases involving the copyrightability of socalled “user interface,” which is the set of commands given by a human user to a computer by striking certain keys or clicking on a screen image. For any given computer program, such as an accounting spreadsheet or a tax calculator, the commands meant to be chosen by the user may number in the hundreds, and they may be grouped or clustered under dozens of headings and subheadings; thus is formed a “menu command hierarchy” or “tree.” This interface is to be distinguished from the internal operations of the computer (protectible if at all by patent), the program that brings about those operations, and the screen display (the graphic presentation of the command tree on the computer monitor). Some courts have concluded that these commands, even viewed as a composite and not as individual words and keystrokes, are necessary to bring about the computer’s functioning and are thus a “method of operation” falling outside the scope of copyright protection by virtue of section 102(b).<ref name="ftn69">Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995), ''aff’d by an equally divided Court'', 516 U.S. 233 (1996); Mitek Holdings, Inc. v. ArcE Eng’g Co., 89 F.3d 1548 (11th Cir. 1996).</ref> Other courts have concluded that, so long as these commands can be expressed and grouped together in a variety of different ways, then the way chosen by the plaintiff is “expression” and not an uncopyrightable idea or method of operation.<ref name="ftn70">Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997). See also the cases upholding copyright in a detailed subject-matter taxonomy, e.g., ''American Dental Ass’n v. Delta Dental Plans Ass’n'', 126 F.3d 977 (7th Cir. 1997).</ref>

==Compilations and Derivative Works==

In many kinds of copyrightable works, the authorship takes the form of “originality” in the expression of preexisting materials. An anthologist may collect and sequence poems written by others. A scholar may translate another’s play from French to English. A cataloguer may prepare a directory by gathering and organizing information about individuals or businesses. If there is original authorship manifested in the anthology, the translation, and the directory, these works are eligible for copyright protection—but only to the extent of the copyright claimant’s original contributions. If the underlying poems and play are in the public domain, as are the facts in the directory, they remain in the public domain for others to copy and base their works on. If the underlying poems and play are still in copyright, their use by the anthologist and the translator does not alter the duration or ownership of that copyright.<ref name="ftn71">17 U.S.C. § 103(b).</ref>

The anthology and the directory are examples of what the Copyright Act refers to as a “compilation.” A compilation as defined in section 101 is “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” The translation is an example of what is defined in section 101 as a “derivative work”:

{{Quote|A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”}}

The relationship and differences between compilations and derivative works are well described in the House Report:

{{Quote|Between them the terms “compilations” and “derivative works” which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A “compilation” results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A “derivative work,” on the other hand, requires a process of recasting, transforming, or adapting “one or more preexisting works”; the “preexisting work” must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.<ref name="ftn72">H.R. Rep. No. 94-1476, at 57 (1976).</ref>}}

Because copyright protection turns upon original creation, copyright in a compilation or derivative work attaches—as noted just above—only to those original contributions made by the compiler or by the creator of the derivative work. Section 103(b) of the Copyright Act''' '''provides:

{{Quote|The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.}}

A motion picture based on a classic novel will not remove the novel from the public domain; nor will it prevent another motion picture producer from basing a new film on the same novel, although the second filmmaker will be barred from copying original elements from the first film (most obviously, for example, music on the soundtrack). Another important principle is set forth in section 103(a), which provides, in pertinent part: “[P]rotection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Thus, an unauthorized translation of a copyrighted novel will infringe the exclusive right of the novelist to make derivative works, under section 106(2); such unlawful use, which permeates the derivative translation, will render it uncopyrightable. If, however, the unauthorized use of the copyrighted novel were to take the form of, for example, a drama with music, it is likely that the music would be copyrightable, because it would not make unlawful use of the protected material in the novel. In the former example, the translator might well complain that, even though he might be an infringer, that fact does not justify denying him a claim against another who makes an unauthorized copy of ''his ''translation; Congress, however, has rejected that contention and has stripped the infringer of a copyright claim in his infringing material, no matter how creative it might be.

In the sections that immediately follow, compilations and derivative works are''' '''considered separately.

=== Compilations ===

It is possible for an author to gather a group of otherwise uncopyrightable elements, and by their minimally creative linkage to create a compilation that is protectible by copyright. The designer of a greeting card can pair a simple drawing on the outside with a simple phrase on the inside; it has been held that another’s card will infringe the “compilation” of the two elements even though its drawing is a bit different and the copied phrase is uncopyrightable.<ref name="ftn73">Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970).</ref> This decision pushed the concept of “compilation” to the brink by holding that only two coordinated elements will suffice; and it introduced an unfortunate phrase into the copyright lexicon by announcing that the “concept and feel” of the two cards were alike, so that the later card infringed (even though it is quite clear that copyright should not be used to protect either a concept or a feel). In any event, merely grouping disparate uncopyrightable elements will not necessarily create a “compilation”; courts have held that a compilation comes into existence only when

there is some synergy among the elements.<ref name="ftn74">Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 (2d Cir. 1998) (West’s “editorial enhancements” in its case reports do not together constitute a copyrightable compilation, but are rather a “piling up” of trivial elements “each in its discrete way in its discrete spot”); Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) (set of five placards, to be sold as a group in department store, not a compilation).</ref>

How the definition of “original work of authorship” applies to a compilation has for many years been a subject of considerable dispute. Both under the 1909 Act and the 1976 Act, a substantial number of courts had extended copyright protection to directories—even, routinely, to alphabetically organized white-page telephone directories— by giving weight (often only implicitly) to the effort, time, and expense devoted to gathering and organizing the underlying factual data that were themselves undeniably in the public domain. This rationale became known as the “sweat of the brow” or “industrious collection” theory.

In a major decision, ''Feist Publications, Inc. v. Rural Telephone Service Co.,<ref name="ftn75">'' . 499 U.S. 340 (1991). ''</ref> the Supreme Court in 1991 explicitly and uncategorically repudiated the “sweat of the''' '''brow” theory as inconsistent with fundamental principles of copyright (as manifested both in the Constitution and the statute) and with the specific definition of “compilation” in the 1976 Act. The Court in ''Feist'' defined “originality,” the prerequisite to copyright protection, to require not only independent creation (i.e., noncopying) but also “some minimal degree of creativity,” “some creative spark.” Although the Court acknowledged that “the requisite level of creativity is extremely low” and that “even a small amount will suffice,” it concluded that white-page telephone directories fail to satisfy this test.

Even the plaintiff directory compiler had conceded that the factual information contained in the book was in the public domain and unprotectible by copyright. The Court agreed; even assuming that such facts—name, telephone number, and town—were unearthed by the plaintiff, it could not claim authorship, for these facts did not “owe their origin” to, and indeed existed prior to, the plaintiff’s publication. Nonetheless, the plaintiff claimed protection for the overall coordination and presentation of those facts. The Court therefore went on to parse the statutory definition of “compilation” and found it to compel the following conclusions: (1) merely collecting and gathering information, no matter how arduous it may be to do so, are not in themselves sufficient to warrant copyright; (2) compilations must satisfy the “originality” requirement in the same manner as all other kinds of works eligible for copyright and cannot properly be treated differently under any “sweat of the brow” theory; and, most important for the Court, (3) because the compiler of facts “can claim originality, if at all, only in the way the facts are presented,” there will inevitably be some fact-based works that lack the required “minimal level of creativity” in selection, coordination, and arrangement—“a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”<ref name="ftn76">''Id.'' at 359.</ref>

''Feist'' held—contrary to decades of decisions by lower courts—that the white-page telephone directory falls within that fatally flawed category. The plaintiff there might have worked hard in making a directory that was useful, but there was “insufficient creativity to make it original.”<ref name="ftn77">''Id.'' at 363.</ref> The Supreme Court found the selection of listings to have been obvious; so too were the book’s coordination and arrangement of facts:

{{Quote|[T]here is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. . . . It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution. . . . Given that some works must fail [the test of originality], we cannot imagine a more likely candidate. Indeed, were we to hold that [the plaintiff’s] white pages pass muster, it is hard to believe that any collection of facts could fail. <ref name="ftn78">''Id.'' at 363–64.</ref>}}

Although the Court in ''Feist'' stated several times that the creativity requirement was a quite modest one (“no matter how crude, humble or obvious”), its reliance upon a subjective and unquantifiable standard (a modicum, a spark) has introduced an element of uncertainty— as perhaps is inherent in the matter—in drawing a line between the copyrightable and the uncreative. (This line, the Court reminds us, finds its source not simply in the statutory language of section 102(a) but also in the word “author” in the Constitution.) Thus, in what was perhaps an overzealous application of the ''Feist'' authorship standard, the en banc Court of Appeals for the Eleventh Circuit held that the typical yellow-page telephone directory lacks creativity in the selection of some 7,000 classified headings (as to which there are a great number of options in nomenclature) and in the linking of some 100,000 business entities to those headings.<ref name="ftn79">BellSouth Adver. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc). ''But see'' Key Publ’ns, Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.2d 509 (2d Cir. 1991) (classified directory of businesses of likely interest to Chinese-American community in New York City).</ref>

Some sorts of familiar anthologies will almost certainly pass the test of original authorship, e.g., selecting a finite number of poems from among the entire corpus of world poetry throughout history, or even from among the poets of a particular nation in a particular literary time period. The statutory term “compilation” contemplates authorship in the manner in which preexisting works or data are “selected, coordinated, ''or ''arranged.”<ref name="ftn80">Section 101 (emphasis added).</ref> Although the poetry anthology will likely pass the test for all three kinds of intellectual endeavor, authorship in only one will suffice. Similarly, the Court of Appeals for the Second Circuit has held that a comprehensive listing of 18,000 baseball cards (with information about price and the like), and a designation of 5,000 as “premium” cards, represented a copyrightable work.<ref name="ftn81">Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir. 1984).</ref> It reached the same conclusion for the well-known directory of used-car values (the so-called ''Red Book''), organized by make and model, five-year periods, and selected accessories.<ref name="ftn82">CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61 (2d Cir. 1994).</ref>

But the same court found that the gathering of five discrete bits of daily information regarding redeemable bonds was inadequate to justify copyright protection for the cards embodying that information.<ref name="ftn83">Fin. Info., Inc. v. Moody’s Investors Serv., 808 F.2d 204 (2d Cir. 1986).</ref> And two courts of appeals have denied copyright protection to lists of numbers generated and compiled to identify product parts: fasteners such as screws in one case<ref name="ftn84">Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc).</ref> and automotive-transmission parts in the other.<ref name="ftn85">ATC Distrib. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005).</ref> The courts invoked a number of theories—such as lack of originality, the idea–expression dichotomy, merger, ''scènes à faire,'' and short phrases—and declined to follow another circuit court’s grant of copyright protection to a taxonomy taking the form of numbers used to identify various dental procedures.<ref name="ftn86">American Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977 (7th Cir. 1997).</ref>

Several cases of particular interest to lawyers and judges have involved claims by the West Publishing Company of copyrightability for certain “compiled” elements of its case reporters. On the one hand, West does not claim copyright in the text of the judges’ opinions as they issue from the courthouse; and on the other hand, even its competitors have acknowledged that West’s copyright does extend to its syllabi and headnotes, along with its key-system taxonomy and its tables and indices prepared by the West staff.

But in a case decided prior to the ''Feist'' decision, ''West Publishing Co. v. Mead Data Central, Inc.'',<ref name="ftn87">99 F.2d 1219 (8th Cir. 1986).</ref> the LEXIS computerized research service announced its intention to incorporate in its screen displays of case decisions “star pagination” reflecting all page breaks in the unofficial West federal and regional reports. West prevailed in its claim that this would constitute an infringement of its copyright in its case compilations, which the Court of Appeals for the Eighth Circuit held reflected “authorship” in the distribution, sequencing and organization of cases. A flatly contradictory decision was issued by the Second Circuit Court of Appeals several years after ''Feist'', by which time the technology had moved to the point that West’s competitors (Matthew Bender and Hyperlaw) sought to insert West page numbers in their CD-ROM products.<ref name="ftn88">Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 693 (2d Cir. 1998) (2–1 decision).</ref> In part because those numbers were found to derive not from West’s creativity but from the mechanical layout of its pages, the court held that its competitors could copy them, and it held the earlier case in the Eighth Circuit to have been erroneously decided. In a companion case,<ref name="ftn89">Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674 (2d Cir. 1998) (2–1 decision).</ref> the Second Circuit also held that West’s various “editorial enhancements” to the courthouse opinions—such as case captions, attorney information, and insertion of parallel citations— were too trivial, and too dictated by citation conventions, so that they, both in isolation and as an alleged compilation, could be copied by West’s competitors.<ref name="ftn90">''See also'' Skinder-Strauss Assocs. v. Mass. Continuing Legal Ed., Inc., 914 F. Supp. 665 (D. Mass. 1995) (holding directory of lawyers’ contact information uncopyrightable).</ref>

The same principles that govern copyrightability of compilations will govern when the claim relates to the particularly modern-day compilation known as the computer database, which is no more than a collection of discrete factual data fixed in tangible form in a computer chip or disk.

Because of the legal uncertainties introduced by the ''Feist'' case into the matter of copyright protection for fact-based directories—at least exhaustive ones straightforwardly arranged—and in light of the time, effort and expense devoted to the preparation of many such directories, bills have been introduced in Congress that would protect hardcopy and computerized databases against unauthorized copying. These bills have been based not on copyright but rather on theories of misappropriation and unfair competition. As yet, no such bills have been enacted into law.

=== Derivative works ===

Although the 1991 Supreme Court decision in ''Feist'' has helped to eliminate much of the earlier uncertainty about the “original authorship” requirement in compilation cases, there remains a comparable uncertainty about the application of that requirement in cases involving derivative works. Derivative works require some sort of “recasting, transformation or adaptation” of underlying works within the subject matter of copyright. If a novel is translated into another language or is expanded into a motion picture film, there is usually little doubt that the translation and the film are copyrightable derivative works; they clearly incorporate creative and “distinguishable variations” beyond the underlying novel. Given the minimal standard of authorship— essentially nonliteral copying—in copyright law, it is not surprising that modest but discernible variations on the underlying work (for example, a work of art translated from canvas to a woodcut or engraving) will sustain a copyright.<ref name="ftn91">Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).</ref>

Some courts, however, have applied the “authorship” requirement to derivative works in a way that arguably departs from these basic principles. The principles are particularly put to the test in cases in which the derivative art works derive their aesthetic worth and their economic value from the exactness of their verisimilitude to the underlying work. For example, in ''L. Batlin & Son, Inc. v. Snyder'',<ref name="ftn92">536 F.2d 486 (2d Cir. 1976) (en banc).</ref> the Court of Appeals for the Second Circuit, sitting en banc, held that a plastic “Uncle Sam Bank” modeled on a cast-iron public domain bank from the late nineteenth century lacked sufficient elements of originality to warrant copyright protection. The copier had used Snyder’s plastic bank as a model for its own, and had not copied directly from the public domain bank. Although there were some purposeful design variations in Snyder’s plastic bank, the court found them to be trivial, not readily discernible, and largely dictated by the mechanical needs of the plastic-molding process.<ref name="ftn93">''See also'' Sherry Mfg. Co. v. Towel King of Fla., Inc., 753 F.2d 1565 (11th Cir. 1985) (variations in graphic design on towels were trivial, and improperly motivated). ''But see'' Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982) (depicting Paddington Bear image as “smoother” and “cleaner” is nontrivial variation and thus copyrightable).</ref>

A similar demanding approach was used by the Court of Appeals for the Seventh Circuit, in ''Gracen v. Bradford Exchange'',<ref name="ftn94">698 F.2d 300 (7th Cir. 1983).</ref> in which an authorized drawing of the Dorothy (Judy Garland) character from the motion picture film ''The Wizard of Oz'' was found to lack sufficient creativity, even though it had been chosen as a contest winner. The court held that “originality” with respect to derivative works “is not to guide aesthetic judgments but to assure a sufficiently gross difference between the underlying and the derivative work to avoid entangling subsequent artists depicting the underlying work in copyright problems.”<ref name="ftn95">''Id.'' at 305.</ref> That is, the creator of a nearly exact derivative work, if given a copyright, could threaten litigation that would chill legitimate recourse by others to the underlying work.

Whether for this reason or another, some courts have imposed what appears to be a higher standard of authorship for derivative art works than for other subject matter within the coverage of the Copyright Act,<ref name="ftn96">Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211 (9th Cir. 1997).</ref> or have accorded only “thin” copyright protection.<ref name="ftn97">Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003).</ref> It is not clear that this comports with the very low threshold for creativity announced by the Supreme Court in its ''Feist'' decision.

==Pictorial, Graphic, and Sculptural Works==

One of the categories of copyrightable works in section 102(a) of the Act is “pictorial, graphic, and sculptural works” (PGS works). The same requirement of original authorship obtains for artistic works as for literary works, and in neither case does it import any standard of aesthetic merit or appeal—only noncopying and a minimal measure of creativity. The latter element has been reflected for many years in section 202.1(a) of the Copyright Office regulations, which excludes from copyright “familiar symbols or designs” and “mere variations of typographic ornamentation, lettering or coloring.” Even before the Supreme Court in ''Feist'' definitively announced the requirement of minimal creativity, courts had denied copyright to a cardboard displaystand in the shape of a circle within a five-pointed star,<ref name="ftn98">Bailie v. Fisher, 258 F.2d 425 (D.C. Cir. 1958).</ref> to a handful of overlapping angular lines (evoking arrowheads) in a sports-team logo,<ref name="ftn99">John Muller & Co. v. N.Y. Arrows Soccer Team, 802 F.2d 989 (8th Cir. 1986).</ref> and to variations in color choices for map territories.<ref name="ftn100">United States v. Hamilton, 583 F.2d 448 (9th Cir. 1978).</ref>

On the other hand, “colorized” versions of motion picture films originally made in black and white have been declared by the Copyright Office generally to contain enough original authorship in color selection as to constitute separately copyrightable derivative works.<ref>52 Fed. Reg. 23,442 (1987).</ref> Copyright has also been sustained in a realistic color drawing of a slice of chocolate cake, designed for use on a cake wrapper;<ref name="ftn101">Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F.2d 541 (2d Cir. 1957).</ref> and the same court of appeals, much more recently, overturned a summary judgment of noncopyrightability of the Barbie Doll’s nose, lips and eyes.<ref name="ftn102">Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133 (2d Cir. 2004).</ref> It has, in fact, been held that the common snapshot or home motion picture film is eligible for copyright, given the photographer’s judgment regarding angle, placement, shading, timing and the like.<ref name="ftn103">Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968).</ref> This approach was extended by the Court of Appeals for the Ninth Circuit to protect a head-on product photograph of a bottle of vodka<ref name="ftn104">Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000).</ref>— although the court ultimately concluded that the “merger” of idea and expression justified only a “thin” copyright and held that a nearly identical photograph did not infringe.<ref name="ftn105">Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003).</ref>

=== Useful articles ===

Perhaps the most difficult issue that arises regarding the copyrightability of pictorial, graphic, and sculptural works concerns those works, typically “sculptural,” that serve useful functions, such as furniture, flatware, television sets, computers, garments, and automobiles. The pertinent law begins with an important Supreme Court decision, moves through some not altogether clear provisions of the 1976 Act, and continues today in a number of court decisions applying the statute in an inconsistent and uncertain manner.

Until 1954, when the Supreme Court decided ''Mazer v. Stein'',<ref>347 U.S. 201 (1954).</ref> it was widely assumed that protection for the design of useful articles had to be secured through the design-patent law—which requires that the design be “novel” and “unobvious”—and that copyright protection was not available. In ''Mazer'', the Court held that copyright protection could be extended to sculptural figures that were used as bases for lamps. The Court stated that, so long as the statues embodied originality, copyright was not displaced by virtue of the potential availability of design-patent protection or by the fact that the design was embodied in a useful article that was mass-produced and merchandised commercially. Since the ''Mazer'' decision, the Copyright Office has registered many ornamentally shaped useful articles. Section 113(a) of the Copyright Act now provides that the copyright in a PGS work “includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.”

A perplexing problem that remained after ''Mazer'' was whether copyright could extend not simply to a separate and independent artistic drawing or sculpture that was incorporated as part of a useful article (such as the lamp base in that case), but also to attractively shaped useful articles in themselves. To permit the copyright owner to prevent the manufacture of a useful article would create the risk that copyright—quick and easy to secure, and long in duration—could be used to secure a patent-like monopoly over articles of manufacture without complying with the more exacting prerequisites for a product patent or a design patent. This concern induced several courts to hold under the 1909 Act that copyright in a two-dimensional drawing of a useful article would not carry with it the exclusive right to manufacture the article itself, and that copyright was not appropriate for the overall threedimensional shape of such an article.<ref name="ftn106">'' E.g.'', Muller v. Triborough Bridge Auth., 43 F. Supp. 298 (S.D.N.Y. 1942) (plan for cloverleaf bridge approach).</ref> Congress, in section 113(b) of the 1976 Act, approved these earlier precedents, simply by incorporating by reference the law as it had existed on December 31, 1977—in effect withholding from the copyright owner the exclusive right to finish or to build the object portrayed.

Congress attempted a formulation of the scope of protection for useful articles by its definitions in section 101. A “useful article” is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” (A dress or an automobile is thus a “useful article” but a designer’s rendering in a drawing or photograph is not because it would “portray the appearance of the article.”<ref name="ftn107">Courts have disagreed on the question whether mannequins are “useful articles,” with the line apparently being drawn—somewhat unconvincingly—between human mannequins (yes), ''Carol Barnhart Inc. v. Economy Cover Corp.'', 773 F.2d 411 (2d Cir. 1985), and animal mannequins (no), ''Hart v. Dan Chase Taxidermy Supply Co.'', 86 F.3d 320 (2d Cir. 1996). ''See'' Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004). Animal masks are not “useful articles” (they portray an appearance) but animal costumes are (they function as clothing as well). ''See, e.g.'', Celebration Int’l, Inc. v. Chosun Int’l, Inc., 234 F. Supp. 2d 905 (S.D. Ind. 2002).</ref>) “Pictorial, graphic, and sculptural works”

{{Quote|include 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.<ref>17 U.S.C. § 101.</ref>}}

If, for example, a corkscrew is composed of a small plastic sculptured human head and a pointed spiral-shaped piece of metal, it is a PGS work, but copyright extends only to the sculptured head and not to the shape of the spiraling metal.

In the words of the House Report, the statutory definitions attempt to distinguish between “works of applied art protectible under the bill and industrial designs not subject to copyright protection.”<ref name="ftn108">H.R. Rep. No. 94-1476, at 55 (1976).</ref> The Report continues:

{{Quote|A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, as in the ''Mazer'' case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee’s intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies’ dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill.<ref name="ftn109">'' Id.''</ref>}}

As to the attractive shape of useful articles in themselves, Congress had, during the copyright revision process, formulated a separate body of legislation that would have extended a special 10-year term of copyright to “the design of a useful article” including its “two-dimensional or three-dimensional features of shape and surface, which make up the appearance of the article”; but this legislation was never enacted. Repeated efforts since to enact such design-protection legislation have been unsuccessful, except for the rather curious and particularistic protection accorded to the shape of vessel hulls.<ref name="ftn110">17 U.S.C. §§ 1301–1332.</ref>

The key to copyright protection of the features of useful articles thus depends on whether the feature is—in the words of the House Report—physically or conceptually separable from the utilitarian features. Examples given in the Report include a carving on the back of a chair or a floral relief design on silver flatware. Although copyrightability might be clear at that extreme, and noncopyrightability clear at the other extreme of a flat rectangular table top resting on four cylindrical legs at each corner, it is of course the intermediate cases that reach the courts, sometimes after a refusal by the Copyright Office to register the work.

The effort to apply the “separability” standard has not resulted in a clear or consistent pattern of decisions. In noteworthy decisions of the Court of Appeals for the Second Circuit, copyright protection has been upheld for an attractively contoured belt buckle (in part, no doubt, because many persons wore the buckle separately as pinned-on jewelry),<ref name="ftn111">Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980).</ref> but has been denied for the shape of mannequin torsos used for the draping of shirts in clothing stores (despite the allusion to the sculptures of ancient Greece and Rome)<ref name="ftn112">Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411 (2d Cir. 1985).</ref> and for the undulating “sine-curve” design of a bicycle rack.<ref name="ftn113">Brandir Int’l v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987).</ref> The Seventh Circuit has more recently drawn upon those decisions to develop a “separability” test of its own.<ref>Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004) (2–1 decision). ''See also'' Bonazoli v. R.S.V.P. Int’l, Inc., 353 F. Supp. 2d 218 (D.R.I. 2005).</ref> All that can be said with any confidence is that the more flamboyant the shape, and the less the shape is dictated by the function, the more readily copyright will protect the overall shape of useful articles.

=== Architectural works ===

Another example of a useful article—one that has given rise to some difficulties in determining the proper scope of copyright protection—is architecture. Both under the 1909 Act and the 1976 Act as originally enacted, courts generally held that although architectural plans and three-dimensional models were copyrightable, that protection would not afford the copyright owner the exclusive right to build the structure depicted therein. By virtue of analysis stemming from ''Baker v. Selden'',<ref name="ftn114">101 U.S. 99 (1879).</ref> courts were reluctant to permit copyright—rather easily secured and of long duration—to be used to prevent the construction of houses and office buildings; there was also, no doubt, reluctance to uphold copyright in architectural “styles” manifested in standard design elements. Under the “pre-1978 saving clause” in section 113(b) of the 1976 Act and the “separability” requirement in the definition of PGS works, these earlier precedents have been applied so that the unauthorized construction of a building would not constitute copyright infringement.<ref name="ftn115">Demetriades v. Kaufman, 680 F. Supp. 658 (S.D.N.Y. 1988).</ref>

This body of law was significantly altered when, in October 1990, Congress amended the Copyright Act so as to extend its protection to the overall shape of three-dimensional works of architecture. The Architectural Works Copyright Protection Act, among other things, amended section 101 to define “architectural work” as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form and elements in the design, but does not include individual standard features.” By protecting the “overall form” of buildings, and by defining “architectural work” separately from all other PGS works so that the “separability” requirement does not obtain for this particular category of useful article, the amended statute now makes it an infringement to construct a building that copies from another’s protectible two- or three-dimensional design. The purpose of the 1990 statutory changes was to bring U.S. law more into harmony with the architectural-protection provisions of the Berne Convention.''' '''

The protection for building designs is subject to certain statutory limitations found principally in section 120: it is not an infringement to draw or photograph a building that is “located in or ordinarily visible from a public space,” and the owner of a building embodying a copyrighted design does not infringe by making alterations to the building or by destroying it. Moreover, the extended copyright protection described here does not apply to buildings that were completed or “substantially constructed” before December 1, 1990.<ref name="ftn116">Zitz v. Pereira, 232 F.3d 290 (2d Cir. 2000).</ref>

=== Works of visual art ===

In what is perhaps an even more dramatic change in the Copyright Act than the inclusion of architectural works, the October 1990 amendments expressly accorded visual artists for the first time as a matter of federal law the rights of “attribution and integrity.” These are the two principal components of what is known in civil-law nations as “moral rights.” These rights—basically, the right to have a work attributed to the artist, and the artist’s right to prevent mutilation or destruction— were granted by the Visual Artists Rights Act (VARA) of 1990 and are now set forth in section 106A of the Copyright Act (to be discussed more fully [[Copyright Law/Exclusive Rights of the Copyright Owner|Exclusive Rights of the Copyright Owner]]).

These two newly created statutory rights are given only to authors of what is defined as a “work of visual art” and not to authors of all pictorial, graphic, or sculptural works. The definition of a “work of visual art” (particularly the exclusions) is elaborate. It covers a painting, a sculpture, and a “still photographic image produced for exhibition purposes only,” in their embodiment as a single copy or in numbered and signed limited editions not in excess of 200. Excluded are works made for hire and a broad range of graphic works such as posters, technical drawings, applied art, motion pictures and other audiovisual works, art in books, newspapers and periodicals, and advertising<ref name="ftn117">Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003).</ref> and packaging materials.

These excluded categories of works remain within the definition of “pictorial, graphic, and sculptural works,” and they are accorded protection against unauthorized reproduction and unauthorized preparation of derivative works. They are not, however, protected against nonattribution or physical mutilation or destruction.

VARA therefore contemplates three sets of rights in art works—the copyright owner of a PGS work can assert the basic right of reproduction set forth in section 106; the artist who has created “a work of visual art” can assert the moral rights set forth in section 106A; and the owner of the physical canvas or sculpture can assert chattel ownership rights under state law. Section 106A(e)(2) expressly provides for this fragmentation of rights.

A dozen states have enacted similar “moral rights” statutes for the protection of artists; most of these laws are broader in both subjectmatter coverage and substantive rights than the federal Act. Section 301(f) of the Copyright Act preempts the enforcement of state-law rights equivalent to those conferred by section 106A upon “works of visual art,” but this would allow states to grant rights of attribution and integrity to works that fall outside that federally defined phrase (such as motion pictures) and to grant perhaps more expansive substantive rights even to “works of visual art.” In any event, section 301(f) expressly saves state rights that extend beyond the life of the artist.

==Pictorial and Literary Characters==

Owners of copyright in literary or pictorial stories have on occasion attempted to assert an exclusive right to the characters depicted therein. The right to continue certain characters in television series, or in novelistic and motion picture sequels, or video games, is of great economic value, as is the right to “merchandise” these characters on shirts, bed linens, dolls and other such paraphernalia.

Pictorial characters drawn for comic books or film cartoons are readily protected by copyright, as pictorial and graphic works, provided they meet the minimal requirements for “original authorship.”<ref name="ftn118">Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004); Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) (Mickey Mouse parodied in defendant’s risqué comic books).</ref> The copyrightable elements of an animated character have been said to “extend not merely to the physical appearance of the animated figure, but also to the manner in which it moves, acts and portrays a combination of characteristics.”<ref name="ftn119">DeCarlo v. Archie Comic Publ’ns, Inc., 127 F. Supp. 2d 497 (S.D.N.Y.), ''aff’d'', 11 Fed. Appx. 26 (2d Cir. 2001) (unpublished).</ref>

Far less likely to be protected by copyright are characters who are delineated by words in literary works. Most such literary characters are “types” with a limited number of not uncommon personality attributes; their “character” is more a reflection of a story line or plot than of any intrinsic detailed nature. Literary characters as such are thus commonly regarded as falling on the “idea” side of the dichotomy between unprotectible idea and protectible expression. Frequently cited are the memorable lines penned by Learned Hand in 1930:

{{Quote|If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.<ref name="ftn120">Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (holding play, ''Abie’s Irish Rose'', and its characters not infringed by motion picture, ''The Cohens and the Kellys'').</ref>}}

No court appears to have held that a strictly literary character (i.e., one described only in words intended for reading) that was the subject of litigation meets the standard of copyrightability, so that it would infringe to depict such a character (particularly without his or her name) in an altogether different tale. The Court of Appeals for the Second Circuit has however intimated, without elaboration, that the Hopalong Cassidy and Amos & Andy characters, in their textual description, pass Judge Hand’s test.<ref name="ftn121">Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91 (2d Cir. 1981); Silverman v. CBS, Inc., 870 F.2d 40 (2d Cir. 1989).</ref>

Characters that are delineated through human actors on the motion-picture or television screen fall somewhere between cartoon or animated characters on the one hand and literary characters on the other.<ref name="ftn122">''See'' Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) (“The description of a character in prose leaves much to the imagination, even when the description is detailed. . . .” ''Id.'' at 660. “[O]ne hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like.” ''Id.'' at 661.).</ref> Although the decided cases are few, courts appear to be inclined to grant copyright to those film characters—perhaps indeed to an extent that affords copyright to stock character “types” and thus to literary “ideas.” Thus, a televised automobile commercial depicting a fast-driving debonair and handsome tuxedoed man, saving himself and his attractive female partner from the clutches of a high-tech villain, was held to infringe the James Bond character (even though that name was not used).<ref name="ftn123">Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995).</ref> And another district court held: “This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author.”<ref name="ftn124">Anderson v. Stallone, 11 U.S.P.Q.2d (C.D. Cal. 1989).</ref> This conclusion—resting on the Learned Hand test of detailed “delineation”—was no doubt reinforced by the fact that Rocky, Adrian, Apollo, Clubber and Paulie had already been developed in three motion pictures and that their names were carried forward in the screenplay of the alleged infringer.

==Government Works==

It is obviously in the public interest that persons be able freely to quote from—and indeed to reproduce in full—federal statutes, regulations, court opinions, legislative and commission reports, and the like. Section 105 of the Copyright Act provides: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” In section 101, a “work of the United States Government” is defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” The House Report states that the intention is to apply this definition in the same manner as the definition of “works made for hire” by employees in the scope of their employment.<ref name="ftn125">H.R. Rep. No. 94-1476, at 58 (1976).</ref> Not swept within the exclusion under section 105 would be a work commissioned by a branch of the U.S. Government and authored by an “independent contractor” or a freelance writer or artist.

As an example of the operation of these statutory provisions, one might consider this monograph on copyright law, prepared under contract for the Federal Judicial Center. Its author is not an “employee” of the U.S. Government, and so it cannot be prepared as part of any “official duties” with the Government. Accordingly, this monograph is eligible for copyright protection in the name of the author. (The author has in fact agreed voluntarily to transfer the copyright to the Federal Judicial Center, which may and does hold a valid copyright as transferee pursuant to section 105. It is, of course, for the Center to decide whether to enforce that copyright or rather to allow some or all members of the public to make copies.) Had the work instead been written by, say, an employee in the Copyright Office as part of his or her job responsibilities, it would indeed be treated as a work of the U.S. Government and would thus be ineligible for copyright protection.

No express provision of the Copyright Act similarly consigns to the public domain works prepared by employees of state and local governments. In 1888, however, the Supreme Court in ''Banks v. Manchester<ref name="ftn126">'' . 128 U.S. 244 (1888). ''</ref> held that state judicial opinions are ineligible for federal copyright protection because state judges are paid with public funds (the implication being that the public is therefore the owner), and because, as a matter of policy, the public interest is served by free access to the law by persons expected to conform their conduct to it (a “due process” rationale). The same rationales were without much dispute extended to state legislation and administrative regulations. After an uncontentious century, the issue of copyrightability of official state materials has recently come to the fore in two contexts.

The first is the nature and range of state materials that are to be analogized to legislation and court decisions, with copyright denied. The Court of Appeals for the Second Circuit has held<ref name="ftn127">County of Suffolk, N.Y. v. First Am. Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001).</ref> that official county “tax maps”—showing the ownership, size, and location of real property parcels in each of the political subdivisions of Suffolk County in New York—are not automatically stripped of copyright simply because they are authored by county officials and because they are used as a basis for the assessment of property taxes. The court held that the taxing statute affords the public adequate notice of their obligations, so that state ownership of the maps would create no problems of due process, and it remanded so that further evidence could be presented on the issue of the county’s need for copyright as a financial incentive for its mapmaking activity.

The second relevant issue of current importance is whether privately authored codes—such as building codes and fire codes, or even model laws—that are written by expert groups lose their copyright when they are adopted (often simply by reference) by a legislative body, say in a county or town. The few cases addressing this question have provided a less-than-definitive answer. However, the Court of Appeals for the Fifth Circuit, sitting en banc, concluded in 2002 in a sharply divided decision<ref name="ftn128">Veeck v. Southern Bldg. Code Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).</ref> that—although such privately drafted codes are protected by copyright at the outset—they are thrust into the public domain when they are adopted by a town as its authoritative legal text, at least when such adoption is actively sought by the drafting body. The principles of ''Banks v. Manchester'' were held to be controlling, although the dissent concluded that a denial of copyright would pose a threat to the useful provision of such codes to busy and underfunded municipal entities. The majority distinguished the situation from the several cases involving the mere “reference” by a city or state to some copyrighted material, privately authored and already in private commercial use; in those cases, involving for example a state’s reference for insurance purposes to automobile values contained in the well-known ''Red Book'' (of the National Automobile Dealers’ Association), the courts have concluded that copyright is not lost.<ref name="ftn129">Practice Mgmt. Info. Corp. v. American Med. Ass’n, 121 F.3d 516 (9th Cir. 1997) (AMA coding system to identify medical procedures); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61 (2d Cir. 1994) (NADA ''Red Book'' auto values).</ref>

==References==
<references/>