Copyrightability

Question 1

Copyrightability Analysis

Answer 1

Originality

Expression

Subject Matter

Fixation

Question 2

What, in general, is copyrightable?

Answer 2

original works of authorship

Question 3

What are the two elements of the fixation requirement?

Answer 3

1. embodiment (in a tangible medium of expression from which it can be perceived or reproduced)
2. for a period of more than transitory duration

Question 4

Two originality requirements

Answer 4

Independent creation + bare minimum of creativity (Feist)

Question 5

Six not-requirements to originality

Answer 5

1. difficulty/effort (sweat of the brow) - Feist
2. novelty - Sheldon
3. intended originality - Bell
4. aesthetic quality - Bleistein
5. non-commerciality
6. lawfulness - Mitchell

Question 6

Challenges to originality are rare, except in the following medium:

Answer 6

photographs

Question 7

3 ways to establish originality of photographs Case: Mannion

Answer 7

1. Rendition (angle, lighting, aperture, exposure, filters)
2. Timing (right place, right time)
3. Composition (including creation of subject, but not subject matter generally)

Question 8

What does the originality requirement mean for derivative works?

Answer 8

For a derivative work to meet the originality requirement, the expression in the derivative work must:

1. constitute a “substantial variation” from the original work, and
2. the new artist’s copyright extends only to the material contributed

Question 9

What section tells you that ideas aren’t protectable?

Answer 9

§ 102(b) “In no case does © 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”

Question 10

Are ideas, concepts, principles, or theories protectable?

Answer 10

No (eg, Hoehling – historical theories)

Question 11

Are facts/discoveries protectable?

Answer 11

No (eg, Nash)

Question 12

Are procedures, processes, systems, or methods of operation protectable?

Answer 12

No (eg, Lotus — menu hierarchies; recipes; dictionary tabs)

Question 13

Is the selection, arrangement, or presentation of elements protectable?

Answer 13

Yes, unless super obvious or unoriginal (eg, arranging a list alphabetically)

Question 14

Are maps copyrightable?

Answer 14

Not the “facts” presented (locations, place names, geographical features, and even arbitrary symbols), but any creative elements are.

Question 15

What are the 8 non-exclusive categories of copyrightable works listed in the statute?

Answer 15

1. literary works (includes software!)
2. musical works including words
3. dramatic works including music
4. choreography
5. pictorial, graphic, and sculptural works
6. audiovisual works
7. sound recordings
8. architectural works

Question 16

Are fictional characters copyrightable? What is the test?

(What test is largely out of use?)

Answer 16

Yes, as long as they are well-delineated and not stock characters.

The Sam Spade test is rarely used. It is much more difficult to meet because it requires that the character “constitute the story being told” to be copyrightable.

Question 17

Is software copyrightable?

Answer 17

Yes, the

1. source code,
2. object code, and
3. structure, sequence, and organization of software is copyrightable (Oracle),

But methods of operation are not (Lotus menu hierarchies).

Question 18

In software, are commands that are creative and non-essential more or less likely to be copyrightable?

Answer 18

More!

(In Lotus, commands were non-creative and essential to the operation of the thing.)

Question 19

What is non-literal copying?

Answer 19

Copying the structure, sequence, and organization of software, but not the source code itself.

Question 20

What are the Altai and Oracle tests for non-literal copying designed to do, and how do they differ in their plaintiff/defendant-friendliness?

(The specifics of the tests will be reviewed later.)

Answer 20

These tests determine which elements of a program’s structure, sequence, and organization are copyrightable.

The Altai test is more defendant-friendly, and the Oracle test is more plaintiff-friendly.

Question 21

What is a useful article according to the statute?

Answer 21

An article that has a function other than to portray the appearance of the article or to convey information. (§ 101)

(also, an article that is normally part of a useful article is also considered a useful article.)

Question 22

What are the two “separability” tests for useful articles?

Answer 22

Physical separability

Conceptual separability

Question 23

What is the physical separability question?

Answer 23

Are the sculptural features separate from utilitarian features?

(e.g., a hood ornament on a car)

Question 24

What is the test for conceptual separability after Star Athletica?

An artistic feature of the design of a useful article is copyrightable if the feature…

Answer 24

1. can be perceived as a 2 or 3 dimensional work of art separate from the useful article, and
2. would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article

Question 25

What are three tests that the Star Atheltica majority rejected?

Answer 25

1. Goldstein’s test included an inquiry into whether the useful article would be equally useful without the design feature, but the court said the focus was on the feature itself, not on what remained of the useful article after the feature had been removed.
2. Nimmer’s test, which asked if the article would be marketable even if it were not at all useful.
3. Intent-of-creator test: did the creator intend the feature to be purely aesthetic, or was the feature motivated in part by functional considerations? Doesn’t matter, says the court.

Question 26

What are scènes à faire?

Answer 26

Incidents, characters, and settings standard in a given genre.

Question 27

When there is only one way of saying something, that expression is not copyrightable.

But what are the two forms of the merger doctrine when there are only a few ways of saying something?

Answer 27

When there are only a few ways of saying something, the expression:

1. is not copyrightable.
2. gets only thin protection (only verbatim copying is prohibited).

Question 28

Are plots copyrightable?

Hint: What case do we use to talk about the idea/expression distinction with respect to plots, and what does it say?

Answer 28

Depends on the level of generality

Learned Hand said in Nichols that works can be expressed at varying levels of generality. The line between idea and expression falls at some level of generality — everything below that line is copyrightable; everything above is not.

Question 29

Are works of architecture copyrightable? Since when? What counts?

What doesn’t count?

Answer 29

Yes, since 1990, and protection extends to buildings, plans, & drawings.

The protection is for overall form, arrangement, and composition of spaces, but not individual standard features.

Any free-standing structure qualifies, including monuments!