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What Can be Copyrighted

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Seminal Case:
A seminal case is a highly influential case which has given rise to a long line of cases following the original holding. Generally, the case will have brought about a major change, or introduced a new idea into the law.

A split into two separate, and opposed, ideas, concepts, or points of view which are contradictory.

Someone who gains something without the usual cost or effort involved, which cost is unwittingly paid by others. Sneaking onto a public bus is an example of free-riding; the cost of public transportation is borne by those who pay (and taxpayers), hence the free-rider is in essence putting his burden on those other, paying, riders.

§102 of Title 17 (“Subject matter of copyright: In general”) is the first place to look to determine what can and cannot be copyrighted. Arguably, §102 is one of the most important sections of the copyright code, along with §106, which will be discussed in detail in Chapter 3.

In addition to the 8 categories of copyrightable material found in §102(a), §102(b) contains the following language:

"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."

The seminal case concerning the dichotomy between “idea” and “expression” predates the 1976 Act by almost 100 years, but the more recent 1976 House Report (The House Report can be found at the beginning of the notes section of the statute) is also quite illuminating:

"Some concern has been expressed lest copyright in computer programs should extend protection to the methodology or processes adopted by the programmer, rather than merely to the “writing” expressing his ideas. Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law….Its purpose is to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged." - House Report, p. 96 (emphasis added).

This may seem like a very long way to say that the writing is protected but the idea is not, but anyone who remains even a little confused by the above quote (most of us!) will have to admit that it does not go far enough in explaining the dichotomy. This conceptual split between ideas and the expressions of those ideas is not an easy one to understand, nor is it easy for courts to apply.

As emphasized earlier in this chapter, familiarity with the history and evolution of copyright is sometimes crucial to understanding its current, and future, application. Although the House Report quoted above makes mention of computers, the case of “Selden’s Condensed Ledger,” heard by the Supreme Court in 1879 (Baker v. Selden, 101 U.S. 99), blazed the trail still followed by courts today.  So, it is a book from 1859, and a Supreme Court decision from 1879, that affect the copyright protection of those using even the most modern technology today.

Selden’s book involved a unique

“arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book,”
and thereby resulted in a useful system of book-keeping, although the
 “system effects the same results as book-keeping by double entry.”
Selden at 100. Selden’s main claim was that the defendant should not be permitted to copy the headings and organization of accounting pages used in his book.

In the end, the court made quite clear its holding:

"The conclusion to which we have come is, that blank account books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book." -Selden at 107.

But what does this tell us about the difference between copyrighting the expression, and the inability to copyright an idea? Allowing Selden to prevent others from using similar headings and organizational methods by claim of copyright would effectively prevent others from using the system of accounting. That system, however, is not itself an expression, but is rather an idea. The concept of applying withdrawals and credits in a certain manner, or of keeping track of them using a specific timetable, is not something which is protected under copyright law. A written description of the system might be protected, but the underlying concept is not.

Definitions (§101)

Much litigation over copyrights has been concerned with the many definitions provided in §101. As these definitions become relevant to our discussion, we will mention them in detail, but you might want to glance at Title 17, §101 of the United States Code before moving further into these materials. It will give you some perspective to realize that there has been an addition or important change to this section almost every year since 1988. It is very rare for federal legislation to change that frequently, but such is the nature of copyright law. After all, did we need a definition in the law for “Digital Transmission” before 1995? As technology and world politics change, so does copyright law, and nowhere is this reflected more than in the §101 definitions.

Subject Matter of Copyright (§102)

"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."

By now, knowing the way of lawyers and the particularly sticky nature of copyright law, you might have guessed that the meaning of “fixed” has seen its share of litigation…and indeed it has. In addition to prompting the many changes made to §101 (see below), the ever-changing world of technological advance has caused its share of litigation concerning this section. Much of this has been clarified over the years, and computer programs, live television broadcasts (which are simultaneously recorded) and other works which do not fit the traditional notions of works “fixed in a tangible medium” clearly are protected under modern copyright law. See e.g., M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421 (4th Cir. 1986) and House Report, p. 93.

Pictorial, Graphic & Sculptural Works (§113)

If “written” expressions (including computer programs and television broadcasts) can be copyrighted, and ideas cannot be copyrighted, what about the world of stuff in between? Various sections of Title 17 are dedicated to fleshing this out, and the first on our discussion list is §113.

§102(a)(5) includes pictorial, graphic, and sculptural works in the list of “works of authorship” which may receive copyright protection. §113 subsections (a) and (b) make clear that simply being “useful” does not make a work less protected under the law. Subsection (c) places some limitations on the rights which may be exercised if the useful work has been copied by permission for sale. Subsection (d), though quite confusing, is generally concerned with copyright protection for works which have been incorporated into buildings (such as a statue carved into the face of the building).

While a quick read of §113 will not give you a clear understanding of the various differences between copyrighting a book and copyrighting a statue, you should know simply that this is the place to start your research if such an issue should arise.


Philadelphia, 1976. City of Brotherly Love. Home of Rocky Balboa and girlfriend Adrian…
Anderson v. Stallone, 11 U.S.P.Q2D (BNA) 1161 (C.D.Cal. 1989) is not quite as exciting as the battle between Rocky and Apollo Creed. It is also not as important as Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) decided by Judge Learned Hand or Warner Brothers, Inc. v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954) (aka “the Sam Spade case”). But the court in Stallone applies the two rules stemming from these other cases and finds that the character of Rocky Balboa, and the others portrayed in the movie (and its progeny) constitute expression which is protected by copyright separate from the copyright protection afforded the story itself. In other words, not only is the script protected by copyright, but the characters are independently protected by copyright law.

Not all character copyright cases involve such bruisers. In a lighter, more lovable case, the very safety and futures of Mickey Mouse, Donald Duck, and others were at stake. In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the court held that

“a comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression,”

and is therefore worthy of copyright protection. Air Pirates at 755.

EXAMPLE: Henry Blacksmith is the main character in a series of popular children’s books. Henry is a young boy with extraordinary blacksmith skills. He can make swords as easily as he can make horseshoes, and his door hinges know no equal. An American college student with no prospects of meaningful employment following graduation next month has a brilliant idea for a story which involved the young Blacksmith. He spends night and day writing the story (he even misses some exams to do so) and eventually manages to sell it to NCN Studios which intends to turn it into a movie. The author of the original Blacksmith series can sue for copyright infringement, as the character is unique enough to warrant copyright protection. To allow otherwise would permit “free-riding” on the efforts of others.

Compilations & Derivative Works (§103)

Definitions for “compilation” and “derivative work” are found in §101. Essentially, a compilation is a work created by collecting, selecting or arranging preexisting material or data which, when taken as a whole, produces a new, protectable work. A derivative work is a work adapted from a previous work, or one which modifies, transforms, or otherwise changes a preexisting work, such that a new, protectable work is created.

§103 makes clear that these types of works are protected, but there are some important qualifications. The copyright on the new work

“does not extend to any part of the work in which such material has been used unlawfully.”

§103(a).  In other words, if the author of a compilation or derivative work has in some way infringed on another’s rights in preparing that work, the new work will not be protected. To permit an infringer a copyright on the infringing work would simply make no sense.

Further, §103(b) makes clear that only the new contribution is protected as a new work of authorship, and that no rights in the preexisting work are granted to the author of a compilation or derivative work simply because the new work is protected by copyright law. After all, it is important that the author of the underlying work is not stripped of his rights simply because a new, original work is based on his work.

In §103 cases, the crucial question usually revolves around the level of authorship in the new work. Is it truly a new work, or simply an infringing copy of the old work with some minor changes? Generally there must be some artistic skill involved in producing the new work, not merely physical or mechanical skill, and there must be some sense of independent creation and distinguishable variation. See Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980).

EXAMPLE: Gretchen is an art student spending the summer in Italy. One of her main goals is to paint a reproduction of the Mona Lisa, which she manages to do with great accuracy. Years later she opens an art store, and displays the Mona Lisa copy prominently in her window. Weeks later, Billy passes by her store and notices the painting. He had also accurately copied the Mona Lisa years ago, and suddenly comes to believe that Gretchen must have copied his painting. Billy’s claim of infringement will likely be denied by a court. Because neither Billy nor Gretchen’s painting demonstrates any originality, it is impossible to tell whether Gretchen copied his painting or the real thing. This is precisely why some level of originality is required in derivative works - otherwise the author of a “derivative” work which simply copies the original could prevent others from similarly copying the original. See Gracen v. Bradford Exch., 698 F.2d 300 (7th Cir. 1983) (The Wizard of Oz case).

Government Works & Public Policy Issues (§105)

§105 states that the United States government cannot obtain copyright protection in its original works, but that it may own copyrights obtained through other means (e.g., purchase, gift, etc).  Again, the §101 definitions are relevant, as a government work is defined as

“a work prepared by an officer or employee of the United States Government as part of that person's official duties.”

Note that a government employee is not barred from obtaining copyright protection on an original work created outside her official duties. It is only works prepared within the scope of duty which are outside the bounds of copyright law.

EXAMPLE (1): Rimbo is an army officer whose job is creating maps of enemy lands. He sneaks in during the night, takes extensive notes and makes numerous drawings, and then returns to American soil, hopefully without incident. One night he is captured by foreign agents and brought to a torture camp. While there, he makes drawings of the camp which he hopes to bring back to his superiors, as required by the Captured Spy Code of Conduct book which he was forced to memorize and then swallow when he first joined his elite unit. The maps made prior to capture, and those made during his stay at the torture camp, are not protected by copyright, as they fall within the scope of §105.

EXAMPLE (2): After several months in the torture camp Rimbo returns home. Considering his difficult ordeal and his newfound phobias of cars (those darn batteries), kitchen sinks (irksome sponges), and vibrating cell phones (we won’t go there), he is given a comfy desk job which the army says he can keep as long as he likes. Because he seems unable to socialize with normal human beings, he spends much of his time alone, painting watercolors of images he remembers from his childhood.  One of these paintings “My First BB Gun - My Neighbor’s First Cat,” has the potential to draw attention and earn Rimbo some money, if only for its shock value. Because the work was not created as part of his job, it is protected by copyright and Rimbo can prevent others from copying his work without his permission.

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