Select Page

Intellectual Property
University of Texas Law School
Bracha, Oren

Purpose and Nature

US Const. art. I, §8

“The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”


Purpose of CR law is to stimulate creation of creative works to benefit public
Moral justification – should have rights in property you create

Goal is to achieve optimum balance between:

Encouraging creativity by giving exclusive property rights in creations

i. Gives authors an incentive to create
ii. Misuse of work may cause intangible injury to author

Giving freest possible public access to works of authorship

i. Don’t want to burden further works of creation

CR protection is for author’s original “works of authorship”

Original expression constitutes CRable subject matter, regardless of quality or commercial character

CR law focuses on economic rights for authors

Limited moral rights

CR law concerns itself w/ intangible work of authorship

Transfer of physical embodiment of work doesn’t grant CR rights

Federal CR right arises as soon as work is fixed in tangible form

Requirements and Limitations

CR subsists “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.” (§102(a))


i. Independent creation (Sheldon)
1. Author must have engaged in intellectual work on his own, not just copied from someone else
ii. Distinguishable variation
1. Required when a derivative work
iii. Creativity (Feist)
1. Minimum amount
2. Discovery is not creation
3. Feist – Selection and arrangement of telephone white pages doesn’t satisfy creativity requirement
a. Facts not CRable b/c not original
b. Labor (sweat of the brow) can’t be substituted for originality
c. But doesn’t have to be innovative or surprising
4. Burrow-Giles Lithographic v. Sarony
a. Photograph of Oscar Wilde was original. Photographer had made number of creative choices, such as posing the subject and choosing the lighting

Not required:

i. Novelty (Sheldon)
ii. Intent to be original (Alfred Bell v. Catalda)
iii. Non-commercial (Bleistein)
iv. Artistic merit (Bleistein)

De minimis rule – book titles and short phrases aren’t CRable
Bleistein v. Donaldson

i. Advertising poster for circus
ii. Don’t inquire about aesthetic quality or care if it’s for comm. purposes
1. Market will decide value of work

Work of authorship requirement

CR applies w/o regard to artistic merit

i. Bleistein – judges ill-equipped to act as critics of art or literature. Any work that qualifies as an original work of authorship is CR able

CR doesn’t limit protection to works that wouldn’t be produced w/o CR

i. Creative impulses, desire for expression and recognition, etc. may motivate authorship of creative works

Excludes conversation and personal conduct

i. Would greatly inhibit human interaction
ii. Difficult to know when someone could claim CR in such activity

Must have human author

i. Work made exclusively by an animal, mechanical, or computer process would be excluded

Fixation requirement


i. Required by Constitution
1. “Writing” implies recorded in some form
ii. Sets boundaries
1. Author informs others of the extent of author’s rights
iii. Evidentiary function

Fixation “when its embodiment in a copy or phonorecord, by or under authority of author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (§102(a))

i. Computer RAM – MAI v. Peak Computing

Intangible literary work only eligible for CR protection once it’s been fixed in a tangible form at least once (§102)
2 categories of tangible medium for fixation

i. Copies
ii. Phonorecords

Must be fixed by or under authority of author

i. Unauthorized fixation won’t qualify for CR protection

Fixation simultaneous w/ transmission

i. Fixation simultaneous w/ performance will trigger CR protection at the time of performance if it’s being transmitted

Expression vs. ideas and facts


i. Free flow of ideas is too important to permit exclusive right in them
ii. In fields w/ limited # of ideas, someone could monopolize the field
iii. Progress is made by expanding upon others’ idea

Immoral or obscene works – no CR exception for these works
Infringing works

“Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” (§103(a))
CR protection is barred for “any part” of a work in which infringing material is used

i. Hard to say what constitutes a “part”

Useful Article Doctrine
1. “The design of a useful article . . . 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.” (§101)
2. Useful article – “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”
3. Useful article must contain some design element that’s physically or conceptually separable from utilitarian aspects of the article
a. Is form dictated by function? (Barnhart)
b. Temporal displacement (Barnhart)
i. Does article stimulate in the mind of the beholder a concept separate from that evoked by utilitarian function?
c. Is primary aspect/use utilitarian?
d. If design features represent purely aesthetic choices, then conceptually separable
e. Whether aesthetic features can stand on their own as a work of art traditionally conceived, and whether article would be equally useful w/o them? (Goldstein)
f. Whether there is a substantial likelihood that even if the article had no utilitarian use, it would still be marketable for its aesthetical qualities (Nimmer)
g. Brandir Intl v. Cascade Pacific Lumber Co. – Bicycle rack not protected by CR b/c functional concerns influenced rack’s appearance

Categories of Works

Categories: (§102(a))
Literary works

“Works, other than audiovisual works, expressed in words, numbers, or