Copyrightable Subject Matter
§ 102. Subject Matter of Copoyright: In General
i. Original work
· Author must have engaged in some intellectual endeavor of her own and not just copied from a pre-existing source
· Minimum level of creativity is also required. Feist
· Recipes are functional and not copyrightable
· Short phrases not copyrightable because it would shut people out from useful terms and because they are so utilitarian there does not need to be an incentive to create them
ii. Fixed in a tangible medium
· Copies or Phonorecords
· Fixed by or under authority of the author
· Must be fixed to achieve CR protection. If not fixed prior to third-party copying, it’s not infringment. However, making copies subsequent to fixation would be infringment.
· Merger Doctrine: When ideas merge with the expression, neither is copyrightable.
· Data Compilations:
· No copyrightable; if Congress were to it would be through Commerce Clause
· Protecting facts is affirmatively hostile to Copyright
· Path Dependence: Also, we’ve never had database protection so we obviously don’t need it to encourage growth
· Path Dependence: We’ve always had copyright so we’ll never get rid of it
o Derivative Works
· A work derivative of a work in public domain is subsequently infringed…
· Differences between DW1 and PD must be sufficient enough to warrant copyright
· Substantial variation from PD work
· Otherwise the DW’s © steps on the PD
· 3D Representation
· If a figure is merely a 3D representation and any changes are functional (not creative) no copyright
· Otherwise original © Owner would lose the right to license
o Copyrightability of Characters
· Learned Hand Test: Highly developed, highly delineated
· WB/Sam Spade Test: If character encompasses “story being told”, then the character is protected
· Physical Representation: Once character has taken on a visual representation it receives more protection that purely literary coun
ey have to for their jobs
Person who fixes the work in a tangible medium
The Creative Visionary (Titanic case)
Work for Hire?
· Employer-Employee Relationship
· Agency Principles
· Independent Contractor
· Written Agreement
· Falls within Nine statutory categories
· Joint Authorship
Who is the author?
Are they the only copyright holder?
Was there a transfer?
Each author made independently copyrightable contributions
There was a written agreement
Childress Test: You intended to be coauthors
Statute: Intended your work to be merged into one unitary whole
Perhaps a non-exclusive license was created instead: Doesn’t require a written agreement. Essentially an agreement not to sue