General Rule: 17 U.S.C § 102 (a): Copyright law applies to any work that meets three requirements. The work is an:
1. Original
2. Work of Authorship
3. Fixed in a tangible medium of expression.
o(Now known or later developed)
1. Originality (Left undefined in the Act)- the sine qua none of CR
a. There are two aspects of originality in §102 (a):
1. Independent creation by the author; and
2. A modest quantum of creativity. (Feist)
i. Independent Creation by the Author-
1) Author- person to whom the work owes its origins (Burrow-Giles). It follows that one cannot be an author unless he originates something.
2) Nothing prevents a valid claim for CR on two or more substantially similar works so long as they were independently created. Unlike a claim for patent infringement, proving substantial similarity alone will not prove copyright infringement, one must prove by direct or circumstantial evidence that the infringer actually copied one’s work.
3) “If by some magic a man who has never known it were to compose anew Keat’s Ode on a Grecian Urn, he would be an “author,” and he if CRed it, others might not copy that poem, though they might of course copy Keat’s public domain poem.” (Judge Learned Hand- Sheldon)
ii. Whether work meets the quantum of creativity:
4) Magic Marketing: Narrow class of works is unprotected because they do not meet the minimum level of creativity. This is a very low threshold. Fragmentary words or phrases and forms of expression dictated solely by functional considerations will not meet this threshold à but so long as there is SOME modicum of creativity, then a work is eligible for CR.
5) Photos protected>>Burrow-Giles Lithographic Co. Sarony (1884): Oscar Wilde was subject of photograph. Photographer dressed and positioned his pose. Sarony took the picture and the other guy was reproducing it. The Lithographic co is claiming that the picture is not a writing and second, it is not creative or original. But, Sarony argues that he chose subject, location, clothes, position, lighting and expression.
a. Rule: One gets protection for mechanical reproductions b/c a photograph is a natural moment captured. Thus, separate from the mechanical part there is a separate © for the express vision, graphic and artistic elements.
6) Advertisments are ©’ble >Bleistein v. Donaldson Lithographing Co (1903).: Typically advertisements were not ©’ble. But this court said that it is an original work when the person decides what to say and where to put the images on the adver
tion:” it was presumed that an author who unconditionally transferred ownership if the chattel embodying the creative work also transferred the right of first publication as well. (Pushman)
oThe legislative history states that this section was drafted in part to overcome Pushman.
oHowever, Pushman cannot be ignored b/c the 1976 Act and state statutes do not act retroactively for transactions involving pre-January 1978 transfers.
§ The right to publish letters: Belongs to the author of the letters and not the recipient, Baker v. Libbie (1912).
§ NY and CA- enacted statutes creating a presumption that sales of art works do not effect transfers of copyright (overcoming the Pushman doctrine).
· Creation of CR
CR springs into existence when both a work of authorship and a material object merge through the acts of fixation.
The act of registration does not create the CR (as it does with a patent). CR is created by the act of an author fixing the work in a tangible medium of expression.
