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Copyright Theory

Congressional Powers

US Cons’t. Art I § 8

"The Congress shall have the power…


π3: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;


π8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries;"


  • Copyright law is exclusive to the federal government and preempts any state law regulating its subject matter.

  • Pursuant to Congressional power under the Progress Clause, Congress:

    • Enacted the Copyright Act of 1976 (& amendments); 

    • Established the Copyright Office in 1897;

    • Ratified the Berne Convention (1988) and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) (1994)

Economic Rationals

  • Utilitarian: Copyrights are a grant of a limited duration monopoly designed to incentivize the creation and distribution of expressive works. (U.S.)

  • Personality: creation is an extension of the author’s being. Creates moral rights. (E.U.)

  • Labor Theory/"sweat of the brow": an artist mixes their mental labors into their creation, creating a property right. Rejected in Feist Publications, Inc. v. Rural Te. Serv. Co., 499 U.S. 340 (1991) ("the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection. . . .").

Subject Matter

Copyright Subject Matter

17 U.S.C. 102(a)

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. . .



17 U.S.C. §101

A work is ”fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 


A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.



  • Fixation requires embodiment

  • Both physical 

  • AND non-transatory

Public Policies

  • Encourage creation and dissemination of art and culture (by preserving it).

    • Compare with:oral traditions/folk lore

  • Serves as an evidentiary requirement.

  • Demarcate boundaries between ideas and expression.



"Originality is the sin qua non of copyrights..." Feist Publications, Inc. v. Rural Te. Serv. Co., 499 U.S. 340 (1991)


•    Congress intentionally did not defined originality in the Copyright Act.

•    Non-humans lack originality under existing law.

•    Commerciality is irrelevant.

•    Aesthetic considerations are barred under the aesthetic non-discrimination doctrine.



•    A modicum of originality

•    OR a “spark” in the mind of its creator

•    NOT novelty (patent standard)



1.    A staged photograph of a person. Burrow-Giles

2.    Chromolithograph circus advertisements. Bleistein

3.    Mezzotint engravings of public domain paintings. Alfred Bell

Derivative Works

Derivative Works

17 U.S.C. §101

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 work must be the original product of the author.

•    Slavish or mechanical copying is not authorship.

•    Incremental (nontrivial) original expression

•    Mere shift in medium insufficient.

•    Extends only to the material contributed, as distinguished from the preexisting material employed in the work.

•    Results in a thin copyright.

Collective Works

17 U.S.C. §101

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.


§101 A “compilation” 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 term “compilationincludes collective works.


The Idea/Expression Dichotomy

17 U.S.C. §102(b)

In no case does copyright protection for any 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.


•    Copyrights on facts would defraud the public.

•    An expressive work describing a useful art is protectable.

•    Ornamental/pictorial illustrations are protectable.

•    Merger doctrine: a limited number of ways suggests that the expression has merged with the idea.

•    Expressive classification schemes can be protected.

   Scenes a faire: cannot protect common genre tropes.

•    Historical interpretations: not original (monopoly concerns).

Works of Authorship

Works of Authorship

17 U.S.C. §102

Works of authorship include the following categories:

  1. Literary works

  2. Musical works, including any accompanying words

  3. Dramatic works, including any accompanying music

  4. Pantomimes and choreographic works

  5. Pictorial, graphic, and sculptural works

  6. Motion pictures and other audiovisual works

  7. Sound recordings

  8. AND Architectural works

Literary Works

17 U.S.C. §101

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, phonorecords, film, tapes, disks, or cards, in which they are embodied. 

Musical Work

Scores & music composition.

Sound Recordings

17 U.S.C. §101

Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.

Pictorial, graphic, and sculptural works

17 U.S.C. §101

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.

Motion Pictures

17 U.S.C. §101

Audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

Audiovisual works

17 U.S.C. §101

Works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

Bar on Governmental Works

17 U.S.C. §105

Codifies Government Edicts Doctrine: cannot copyright law or judicial opinions Wheaton

Useful Articles Doctrine

17 U.S.C. §101

An article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.”

17 U.S.C. §101

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 

Conceptual Separability Test

  • ​An artistic or conceptual feature incorporated into a useful article is protectable if the feature:

    • Can be identified separately from the utilitarian

    • AND Is capable of existing independently of the utilitarian aspects of the article.

06 Computer Software

Computer Software as Writings

H.P. Rep. No. 1476 (1976) to § 101

The term “literary works” does not connote any criterion of literary merit or qualitative value: it includes catalogs, directors, and similar factual, reference, or instructional works and compilations of data. It also includes computer data basses, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. 

17 U.S.C. § 101

Computer Program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

17 U.S.C. §117(a)

Defense to infringement

(a) Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, OR

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.



Technological Protections (i.e. Encryption)

  • Physical access codes

  • Black-box devices

  • Serial Copy Management System

  • CSS – Reimerdes


World Intellectual Property Organization Treaty

  • Article I

    • Protection against “circumvention of effective technological measures. . . [n]ot authorized by the authors concerned or permitted by law.”


The Digital Millennial Copyright Act of 1998, 17 U.S.C. 1201

  • (a)(1) prohibits individual acts of circumvention of access controls;

  • (a)(2) prohibits distribution of technologies designed to aid in circumvention of access controls;

  • (a)(3) prohibits distribution of technologies designed to aid in circumvention of rights controls; and

  • Nothing prohibits individual acts of circumvention of rights controls.​

09 Authorship


§201(a) initial ownership

Copyright in a work protected under this title vests initially in the author or authors of the work.

The authors of a joint work are co-owners of copyright in the work.

§201(b) works made for hire

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

1 U.S.C. 8(a)

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.

Joint Works

§ 101 A ”joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

Works Made For Hire

§ 101 A “work made for hire” is

(1)A work prepared by an employee in the scope of his or her employment; . . .

(2)A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruction test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. . .

10 Formalities


  • Public Policies

1. It has the effect of placing in the public domain a substantial body of published material that no one is interested in copyrighting;

2. It informs the public as to whether a particular work is copyrighted;

3. It identifies the copyright owner; and

4. It shows the date of publication.

Domestic Manufacture

  • The 1909 Copyright Act required domestic manufacture of material objects within the      jurisdiction of the United States

  • The penalty for failing to comply was forfeiture of the copyright to the public domain


Domestic Manufacture & Restoration

  • Berne Article 18 requires retroactive protection of foreign works that lost protection for      failing to comply with U.S. formalities.

§104A restores copyright protection for certain works

  • Must not have been in public domain in source country

  • Is public domain in the U.S. due to: (1) formality noncompliance; or (2) lack of national eligibility


17 U.S.C. 104A

(C) is in the public domain in the United States due to—

    (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;

    (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or

    (iii) lack of national eligibility.

11 Duration

§304(a)(1)(c) In the case of any copyright work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work-

1.Living authors;

2.Dead author’s surviving spouse or children;

3.Author’s executors if no immediate decedents;

4.Author’s next of kin, if no will

Shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years

  • Copyright term has always been split between the original and renewal term.

  • Originally the renewal was merely an extension of the first term, but in 1831 Congress made a policy determination.

  • Cannot calculate the value prior to exploitation, allows authors to renegotiate.

  • Assignment of the renewal is a mere expectancy, not a property interest.

  • Assignment of renewal rights by author before the renewal does not defeat the renewal right

  • Assignee takes risk that the right never vests

Terminations of Transfer

§203(a) Conditions for Termination-In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or any right under a copyright, executed by the author on or after Jan. 1, 1978, otherwise than by will, is subject to termination under the following conditions:


  • 1 author: by that author, or if deceased, who owns or exercises more than one half of the termination interest;

  • 2+ authors: majority of authors, same rules apply for deceased joint authors.


Termination of the grant may be effected:

  • At any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant;

  • If grant covers right of publication:

    • period begins at the end of the thirty-five years from the date of publication of the work under the grant;

    •  or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

§203(a)(4) Termination by notice in writing by parties in (a)(1)

(A)Include effective date of termination within the 5 year window; Serve not less than two or more than ten years before that date. Record with Copyright office.

(B)Notice must comply with Register of Copyrights requirements.


Exclusive Rights

Copyright infringement requires:

1.π owns valid copyrightable work; and

2.∆ infringes that copyright.

Feist; § 501(a)-(b)

Statutory defenses: §107-122

Infringement requires a violation of:

§106 Owner’s exclusive rights to do and authorize:

1.Reproduce the work

2.Prepare derivative works

3.Distribute copies or phonorecords

4.Perform the copyrighted work publicly

5.Display the copyrighted work publicly

6.Performance of sound recordings publicly by means of a digital audio transmission

2. Defendant’s infringement:

A.Copying in fact; and

B.Copying in law

2. Defendant’s infringement:

A.Literal copying or access (provides circumstantial evidence of copying); and

B.Substantial similarity between the works

Substantial similarity

•Can be resolved as a matter of law.

•Does not require identity; duplication or near identity is not necessary to establish infringement.

•Did the average lay observer recognize the alleged copy as having been appropriated from the work?

•Rejects “ordinary observer test”

Substantially similar if the ordinary observer, unless he sets out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

•Thus, the more refined if the π’s work is not wholly original, but rather incorporated the public domain.

•Must show substantial similarity between those elements that provide copyrightability to the alleged infringe compilation.

Substantial similarity between expression is subtle and complex, apply an intrinsic test.

No principle can be stated as to when an imitator has gone beyond copying the idea and borrowed its expression.

Substantial similarity has been used to describe both the degree of proof for copying and the similarity needed to establish appropriation.

•Prove copying: need not be extensive and need not involve expressive elements

•Prove misappropriation: must involve protected elements

•Proof of copying is necessary because independent creation is a complete defense.

Proof of unlawful appropriation is needed because not all copying is forbidden (idea/expression, patents, fair use, etc.)

No definable test for substantial similarity, fact driven inquiry.


The ultimate question is:

•Did the defendant take too much from the heart of the original?


Distribution Rights

§106(3) Distribute copies or phonorecords of the copyright work to the public by sale or transfer of ownership, or by rental, lease, or lending. . .

The copyright statutes protect the right to sell the production, do not create the right to impose, by notice, such as is disclosed in this case, a limitations at which the book shall be sold a retail by future purchasers, with whom there is no privity of contract.


Once the copyright owner has sold (vended) the copie, their distribution right is extinguished (as to that copie).

17 U.S.C. §109(a) (First Sale Doctrine)

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. . .

The copyright statutes protect the right to sell the production, do not create the right to impose, by notice, such as is disclosed in this case, a limitations at which the book shall be sold a retail by future purchasers, with whom there is no privity of contract.


Once the copyright owner has sold (vended) the copy, their distribution right is extinguished (as to that copie).

Importation Rights

17 U.S.C. §602

Importation into the United States, without the authority of the owner of copyright under this title, or copies of phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106.

Is importation a separate copyright owner’s right?

  • 602’s reference to 106(3) incorporates the first sale doctrine into the important right.

  • Thus it might seem that the overseas purchaser can import a copie into the United States.

No, 109 does not create or contain a geographic limitation nor extraterritoriality.

  • Why would Congress have intended to create a geographic interpretation that threatens scholarship, art, commerce and consumer activities?

  • Under means: “in accordance with.”

Derivative Works

Derivative Rights

17 U.S.C. §101: 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”.

Qualitative/quantitative test

Qualitative: creative original expression from the books. 2400 entries contain Rowling's fictional facts. Invented facts are creative expression springing from Rowling's mind

Quantitative: how much copied


Other tests are bad because the works are in two different genres.

Sub. similarity embraces similarities in structure, sequence and similarity in language.

  • Derivative rights extend beyond mere protection against unauthorized copying to include the right to make other versions of, perform, or exhibit the work.

  • Recasting the work encompasses more than reproduction. By removing the images from the book there is a recasting or transformation.

Nimmer: [A] work will be considered a derivative work only if it would be considered an infringing work if the material which it has derived from a preexisting work had been taken without the consent of a copyright proprietor of such preexisting work

  • An alternation that includes or consumes a complete copy of the original lacks economic significance and is not a derivative work.

Derivate work examples in 101 all incorporate the underlying work. Legislative history indicates that it must include a portion of the copyright work in some concrete or permanent form.

Fictional Characters

Test 1: Copyright protection extends to characters—both literary and graphic— that constitute "the story being told" in a work. Warner Bros. v. Columbia


  • A character is not copyrightable under this test where “the character is only the chessman in the game of telling the story.”

  • This is a high bar, since few characters so dominate the story such that it becomes essentially a character study.

Test 2: A character is entitled to copyright protection if

  1. The character has physical as well as conceptual qualities;

  2. The character is sufficiently delineated to be recognizable as the same character whenever it appears and displays consistent, identifiable character traits and attributes; and

  3. The character is especially distinctive and contains some unique elements of expression.

DC Comics v. Towle (Batmobile)

Moral Rights

Moral Rights

Berne §6bis(1)

Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

No recognition of Moral Rights in the U.S. except:

  • Misrepresentation claim under theories of common law libel, defamation, and unfair competition (both state and Lanham Act); or

  • VARA

VARA’s limited moral rights:

(1)(A) Claim ownership in a work of visual art;

(1)(B) Prevent use of name as author in a work of visual art;


(2) Prevent use of name as author in the event of distortion, mutilation, or other modification if prejudicial; and. . .

(3) Subject to the limitations in 113(d):

(A) Prevent any intentional distortion, mutilation or other modification; and any intentional distortion mutilation or modification is a violation of that right

(B) Prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction is a violation

§106(A) “Work of Visual Art”

(1)Painting, drawing, print or sculpture

Existing in a single copy; OR

In a limited, signed and numbered run of less than 200 or fewer copies


(2) Still photographic image produced for exhibition

Existing in a single copy; OR

In a limited, signed and numbered run of less than 200 or fewer copies

§106(A) “Work of Visual Art” does not include:

(A)(i) Factual depictions (not including expressive photographs); motion pictures or other audiovisual works; or literary works

(ii) Merchandising or promotional materials

(B) Works made for hire

(C) Works not subject to copyright protection

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