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University of Baltimore School of Law
Kasunic, Robert J.


A. Constitutional
B. Statutory


A. FIXATION— § 102(a) requires a work is “fixed in a tangible medium of expression” to qualify for copyright protection.
1. § 101: Work is “fixed” if
(a) it is fixed in tangible medium of expression
(b) sufficiently permanent or stable to permit it to be perceived reproduced or otherwise communicated for a period of more than transitory duration
(c) must have been fixed by or under the authority of the author.
2. RATIONALE—focus on effect (of sufficient permanence or stability) produced by the work rather than the particular means used to create or store it, thereby avoiding anomalous decisions such as White-Smith Publishing Co. v. Apollo Co. (US 1908) which deemed piano rolls beyond protection because it was not a “written record or intelligible notation” (i.e. content could not be discerned by the public without the intervention of a mechanical device). Definition tries to protect original basis of copyright in the publication of printed materials.
(a) Complication—emails and other ephemeral media—if they are not protected other digital works may not be either, if they are then is fwding an email infringement?
(a) Repetition of a transitory image qualifies as fixed. Common core of experience. Williams Electronics v. Artic Int’l (3d 1982) [repetitive image in video game is “fixed” despite player interaction causing the image to change] i. This case corrects the Apollo doctrine in that the work itself requires both technological and human interaction to be displayed, but is it still considered “fixed” by the court.
(b) Live performances w/o recording are not protectable
i. Transmission rule—transmitted sounds or images are protectable if fixation (record) made while being transmitted. § 101 (leg hist.).
ii. Bootleg problem—strict language of statute requires both transmission and recording under permission of author to be copyrighted; live performances not transmitted were not covered, permitting bootlegging by audience members.
v Congress enacted amend. to Copyright Act to implement TRIPs Agreement § 1101(a) protection for live music performances (no fixation w/o permission of performer, no distributing copies).
v Court said this is not consistent with Const. copyright protection, but allowed under Commerce Clause because not “fundamentally inconsistent” with Copyright Clause. US v. Moghadam (11th 1999).
4. COPIES—fixation also an issue in determining when a copy has been made.
(a) Court found transferring files from disk onto RAM of computer is copying because the programs become fixed (enough to be viewed/ utilized) even though the fixation is temporary. MAI Systems v. Peak Computer (9th 1993) [later statutorily overruled by § 117 permitting 3rd party repair/ maintenance] i. NOTE: § 101 requires that a copy be fixed in a way that permits perception but does actually require that it is perceived.
(a) Berne Convention leaves fixation decision to individual countries (most require only form in which others can perceive it)
(b) Neither WIPO nor TRIPs Agreement mention fixation
(c) EU specifically exempts certain copies:
i. Transient / incidental aspect of process (e.g. viewing web page)
ii. Integral / essential to the technical process of viewing
iii. Lawful use or transmission by ISP
iv. No independent economic significance
1. even some uses with economic significance do not adversely impact author (e.g., cyber café charges to surf the web)

B. ORIGINALITY—§ 102(a) extends copyright to “original works of authorship”
1. WHAT IS ORIGINAL?—1909 Act contained no originality requirement, it was added in 1976 Act. Originality is not a Const. requirement so courts have struggled to interpret what it means. Progress of case law has been increasingly satisfying “originality” at a very minimal threshold.
(a) A photograph that reflects creativity in the photographer’s selection of costume, pose, lighting and composition is sufficiently original to qualify for copyright protection. Burrow-Giles Lithographic v. Sarony (US 1884) [posed photograph of Oscar Wilde is a proper subject of copyright] (b) People are free to copy the life-subject of a work, but not to copy the copy. All that is required is some personal input on the subject matter by the author. Use as advertisement does not undermine originality (subjective standard of originality). Bleistein v. Donaldson (US 1903) [chromolithographs of people on an advertisement are copyrightable] i. Announces non-discrimination standard where judges should not evaluate merit of work or tastes of the public.
ii. NOTE: planning and original mental conception language from Burrow-Giles has disappeared.
(c) Originality means that the particular work “owes its origin” to the author. No large measure of novelty is required so long as input of author is “more than merely trivial.” Alfred & Bell v. Catalda (2d 1951) [A lithograph etching of a painting in the public domain is protectable.] i. NOTE: Feist later rejects a “sweat of the brow” doctrine which rewards effort, but the language in Catalda emphasizes the tie between labor and talent suggesting that it is skilled labor (with its irreducibly mental element) that they are protecting.
(d) Originality is not satisfied where the work is simply “slavish copying”. Some distinction beyond a change of medium or mere technical skill is necessary. The Bridgemann Art Library v. Corel (SDNY 1999) [transparencies of paintings are not protected] (e) Cf. In patent law, a patent may not be awarded unless there is sufficient difference from the original that the new version / development would not have been obvious to an observer trained in that field upon seeing the original. Graham v. John Deere (US 1966)
i. But copyright can be granted in cases where the originality requirement of patent is not met. Laureyssens v. Idea Group (SDNY 1991) [granting copyright in foam puzzles where multiple expired patents existed in similar designs] (f) NOTE: modern standard for originality is Feist “minimal creative spark” and no “sweat of the brow”
(a) Japan & Germany require high level of originality including creativity and artistic merit (qualitative approach)
(b) Italy & France require only personal expression
(c) UK requires that the work originate from the author and not be copied.

C. IDEA/EXPRESSION DISTINCTION—§ 102(b)— “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.”
1. RATIONALE: (1) Define line btw copyright and public domain; (2) define line between copyright and patents
2. FORMS: Blank forms are not copyrightable, because they are designed to record information, not convey information. But, the instructions on forms for filling them out are copyrightable. Edwin K. Williams & Co. v. Edwin K. Williams & Co. East). And, if a form in designed so as to guide the user is filling itself out, e.g. some test answer sheets, it may be copyrightable. Harcourt Brace & World, Inc. v. Graphic Controls Corp. 37 CFR 202.1
(a) In obtaining the copyright to an explanation of a method, one controls only the expression of the explanation and not t

copyright holder’s rights)

ü Which circuit are you in?
ü Level of skill required to make derivative work (we reward skilled labor, not sweat)
ü What is the underlying work? (differing standards for fine art v. functional items)
ü Access (did the DW author have access to the original work?)
ü Who holds copyright in underlying work?
o public domainàlower standard
o permission needed for copyrighted works

2. A replica of a work in the public domain must have changes that are more than merely functional/ trivial in order to qualify for copyright protection as a derivative work. L. Batlin & Son v. Snyder (2d 1976) [plastic version of metal Uncle Sam coin bank was not copyrightable] (a) Introduces public benefit of access as a basis for granting copyright (constitutional but not statutory basis)
(b) Unprotected middle ground between two protected categories.
i. Exact copy requiring great skill to make (Alva Studios protection of Hand of God replica)
ii. Substantial originality.
(c) Dissent would permit thin copyright to protect exact replicas.
3. Two-part test from Durham (1980):
(a) the original aspects of the work must be more than trivial
i. Purely functional alterations are trivial. Entertainment Research Group v. Genesis Creative (9th 1997) [inflatable costumes of copyrighted cartoon characters not copyrightable] ii. ERG v. Genesis distinguishes Doran v. Sunset House Dist. Corp. (SD Cal 1961) [permitting copyright in 3D Santa Claus]—Doran gave protection to works that “differed sufficiently” but that lower standard only applied because the existing work was in the public domain.
(b) the original aspects must reflect degree of reliance on preexisting material and not affect the scope of the copyright protection in the preexisting material
i. This element prevents harm to primary holder’s rights to re-license derivative works
ii. NOTE: Idea of reflecting degree of reliance suggests reciprocity – the derivative work must involve as much originality as the aspects of the preexisting work that are used – difference between copy and derivative work. Adds a concept of fairness to the statutory minimum mentioned in requirement (a)
(a) ETS-Hokin v. Skyy Spirits (9th 2000): photograph of a bottle was not a derivative work because the bottle was not a pre-existing work (but is photograph of a protected work derivative? Perhaps) à independently copyrightable
(b) SHL Imaging v. Artisan House (SDNY 2000): photograph of protected work is not derivative because it does not alter or recast the originalà independently copyrightable
5. PERMISSION REQ: Otherwise copyrightable derivative works are not copyrightable without the permission of the underlying copyright holder. Pickett v. Prince (7th 2000) [denying copyright in guitar shaped like Prince symbol]