Intellectual Property Law

Chapter 10 Lecture Notes

Major points addressed in the chapter materials include the following:

1. There are three basic requirements for copyrightability:

• A work must be original
• A work must be fixed in a tangible form of expression
• A work must be a work of authorship

2. The requirement of originality means that the work must have been independently
created and must possess a modicum of creativity. The work need not have literary or
artistic merit, and it can be original even if it is strikingly similar or identical to that of
another, so long as each work was independently created. Thus, originality does not
mean first. As to creativity, even a slight amount of creative spark will suffice.

3. To be copyrightable, a work must be fixed, meaning that it must be embodied in a
copy or phonorecord and be sufficiently permanent or stable to permit it to be
perceived, reproduced, or communicated for a period of more than transitory
duration.

4. A copy is a material object (other than a phonorecord) from which a work can be
perceived, reproduced, or communicated, either directly by human perception or with
the help of a machine, such as a computer or movie projector, such as books,
manuscripts, sheet music, film, or videotape.

5. A phonorecord is a material object in which sounds (other than those accompanying
a motion picture or other audiovisual work) are fixed and from which the sounds can
be perceived, reproduced, or communicated either directly by human perception or
with the help of a machine. Thus, a record, a CD, and a cassette tape recording are all
phonorecords.

6. Because fixation requires that a work be embodied in some sufficiently stable or
permanent form to be perceived, an oral presentation or live performance is not fixed
(unless it is simultaneously placed on film or tape or reduced to writing). Although
live performances are thus not protected because they are not “fixed,” special statutes
(17 U.S.C. § 1101 and 18 U.S.C. § 2319A) provide civil and criminal remedies for
“bootlegging” sound recordings of live musical performances and music videos.
(Similarly, the Family Entertainment and Copyright Act makes camcording in movie
theatres a federal crime.)

7. While the Copyright Act lists eight categories of protectable works, that list is not
exclusive and the Act provides that copyright protection subsists in original works of
authorship fixed in any tangible medium of expression now known or hereafter
developed, showing Congress’s intent to protect new and emerging forms of
expression.

8. The eight statutory categories of protectable works are as follows:

• Literary works. A literary work is one expressed in words, numbers, or other
verbal or numerical symbols, and thus includes books, periodicals, poetry,
marketing materials, employee handbooks, speeches, and computer programs.
• Musical works. A musical work, together with its accompanying words, is
copyrightable. The author of a musical work is usually the composer and the
lyricist (if any). The lyrics/words to a musical composition are not protected as
literary works but rather as musical works.
• Dramatic works. A dramatic work is usually a theatrical performance or play
performed for stage, movie, television, or radio. Dramatic works include the
spoken text, plot, and directions for action, such as a screenplay or script. The
music accompanying a dramatic work is protected as a dramatic work rather than
as an independent musical work.
• Pantomimes and choreographic works. Pantomime or mime is a performance
using gestures and expression to communicate with no accompanying sound. An
impromptu street performance would not be protected (because it is not fixed) but
a film of a mime would be. Choreography is the composition and arrangement of
dance movements and patterns. Simple dance routines and social dances are not
protectable unless they are incorporated into some otherwise protectable
choreographic work. Many choreographed works are precisely described in text
or in dance notation systems, thus showing their “fixation.”
• Pictorial, graphic, and sculptural works. This category includes twodimensional
and three-dimensional works of fine, graphic, and applied art. The
category is extremely broad and includes posters, maps, artwork applied to
clothing, dolls, toys, jewelry, sculptures, photos, and certain fabric designs.
Copyright law, however, does not protect useful articles so that clothing,
furniture, machinery, appliances, and the like are not copyrightable.
• Motion pictures and other audiovisual works. Motion pictures (together with
accompanying sounds) are copyrightable as are audiovisual works (works
consisting of a series of related images intended to be shown by the use of
machines, such as a slide presentation).
• Sound recordings. A sound recording is a work that results from the fixation of a
series of musical, spoken, or other sounds, regardless of the nature of the material
objects (such as disks, tapes, or phonorecords) in which they are embodied. There
is a distinction between a musical work and a sound recording: A musical work
consists of music (including any accompanying words) and its author is the
composer and the lyricist (if any). A sound recording results from the fixation of a
series of musical, spoken, or other sounds and its author is the performer whose
performance is fixed or the record producer who processes the sounds and edits
and fixes them in the final recording, or both. Generally, a song is notes and
words; a sound recording is what you hear when you play the radio or a CD.
• Architectural works. An architectural work is the design of a building as
embodied in any tangible medium of expression, including a building,
architectural plans, or drawings. The work does not include standard features,
such as windows and doors. The term “building” includes not only permanent and
stationary structures for human habitability (such as houses and office buildings)
but also gazebos and pavilions.

9. In addition to useful articles, there are a number of exclusions from copyright
protection:
• Ideas, methods, or systems. The traditional principle is that copyright protects
expression of ideas but not the ideas themselves. Scientific methods, business
operations, algorithms, and other like processes are not copyrightable. Generally,
if there are a number of ways of explaining a topic, the original expression will be
protected against copying; however, if there are few alternative ways of
expressing something, only literal copying will be an infringement. In such cases,
the expression merges with the idea and copyright protection is denied to the
merged expression because ideas are not copyrightable. This is the merger
doctrine. Blank forms, titles, short phrases, and common property are not
copyrightable. To be copyrightable, a work must contain at least a minimum
amount of original expression. Thus, copyright does not extend to titles, names,
slogans, checklists, blank forms, or works consisting entirely of information that
is common property (such as standard calendars, height and weight charts,
schedules of sporting events, and so forth).
• Public domain works. Works in the public domain are those that are free for all
members of the public to use and exploit. There are two types of public domain
works: works arising from expired copyrights and U.S. government works.
• Facts. Facts are not protected by copyright because one who uncovers a fact is
not an author or creator. Thus, statistics, dates of birth and death, and other such
ascertainable matters cannot be protected by copyright.
• Computing and measuring devices. Devices for computing and measuring (slide
rules, wheel dials, etc.) are not copyrightable.

10. Characters (for example, the “Hulk”) are copyrightable if they are highly developed
rather than some basic character type.

11. Standard or stereotypical characters and incidents that necessarily flow from common
unprotectable ideas, called scènes à faire (“scenes which must be done”) are not
copyrightable.

12. Immoral works are copyrightable (generally based on First Amendment principles).

13. A compilation is a work formed by the collection and assembling of preexisting
materials that are selected or arranged in such a way that the resulting work
constitutes an original work of authorship. Compilations are protected by copyright if
there is original authorship in the selection and arrangement of the material. Thus, an
almanac is copyrightable due to the author’s unique arrangement of facts, even
though the underlying facts in the almanac (weather statistics, dates of birth, etc.) are
not. Although the requirement of originality is not stringent, the arrangement of facts
cannot be so mechanical and routine (such as was found in Feist, where the Court
denied protection to an alphabetically arranged phone book) as to demonstrate no
creativity whatsoever.

14. A collective work is a work, such as a periodical issue, anthology, or encyclopedia in
which a number of contributions, each of which is separately copyrightable, are
assembled together, such as Poems of 20th Century Americans. Authorship in the
collection extends to the particular selection and arrangement of the poems but not to
the poems themselves.

15. The difference between a compilation and a collection is that the matter comprising
the compilation is often not copyrightable (such as facts) while the matter comprising
the collective work (short stories, poems, etc.) is usually copyrightable. Permission
must be sought from the owners (or a compulsory license obtained) to
include/reproduce their works by assembling them in the collection.

16. A derivative work is one based on or derived from one or more already existing
works (such as a translation, dramatization, or fictionalization), which recasts, adapts,
or transforms the work. Thus, a television drama of a play or a new preface added to a
book are derivative works. To be copyrightable, the derivative work must contain
substantial new material; minor changes are insufficient.

17. The copyright in a derivative work covers only the new matter and does not affect or
extend the nature, scope, or duration of copyright protection for the original work.

18. Only the copyright owner can prepare or authorize another to prepare a derivative
work.