Copyright ClauseCongress shall have Power … To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries (U.S. Const., Art. I, §8, cl. 8)

17 U.S.C. §102(a) Copyright protection subsists, in accordance

with this title, 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 …

(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.

Three requirements:1)That the work be “fixed” in a tangible medium of expression;2)That it be an “original work of authorship”; and3)That it not be an idea, procedure, etc.

FIXATIONThe U.S. is the only country that includes a fixation requirement.Others (esp. in Europe) require that the work be perceptual in nature.

White-Smith Publishing Co. v.Apollo Co., 209 U.S. 1 (1908)•A player-piano roll is not a‘copy’ of the musicalcomposition it represented.•Such a thing is not directlyintelligible to a human reader.

1909 Copyright Act•Introduced provision for ‘mechanical reproductions’ of musical works, requiring compulsory license, but this ran into problems because it was medium-specific.

Pre-1976 Copyright Act•Publication as necessary condition for copyrightability.

1976 Copyright Act•Introduced idea of “fixation in a tangible medium of expression”.•Musical recordings now called “phonorecords”.•“Fixed” covered traditional works to that point.•Technological advancements have proven problematic.

Williams Electronics, Inc. v. Artic International, Inc.685 F.2d 870 (3d Cir. 1982)

MAI Systems Corp. v. Peak Computer, Inc.991 F.2d 551 (9th Cir. 1993), cert. dismissed, 510 U.S. 1033 (1994)

ORIGINALITY•Most countries’ copyright laws require some level of creativity.•Prior to the 1976 Act, originality was explicitly stated as a requirement.•The 1976 Act introduces the phrase “original work of authorship” but leaves this undefined.•However, there is no requirement of novelty, ingenuity, or aesthetic merit wrapped up in the notion.•So there is more required than mere creation…but not much more.

ORIGINALITY•Where U.S. patent requires “non-obviousness”, something much more stringent than the “originality” required in copyright.•Moreover, patent requires that the thing being patented be “new”—i.e. having never been done before. Copyright has no requirement of novelty.

Feist Publications, Inc. v. Rural Telephone Service Co.499 U.S. 340 (1991)

Burrow-Giles Lithographic Co. v. Sarony111 U.S. 53 (1884)

Bleistein v. Donaldson Lithographing Co.188 U.S. 239 (1903)

Alfred Bell & Co. v. Catalda Fine Arts, Inc.191 F.2d 99 (2d Cir. 1951)

Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.528 F.3d 1258 (10th Cir. 2008)

Mannion v. Coors Brewing Company377 F. Supp. 2d 444 (S.D.N.Y. 2006)

THE IDEA/EXPRESSION DICHOTOMY•Copyright protects the expression of an idea, but not the idea itself (what is being expressed).•“Idea” is traditionally used as a shorthand for various non-copyrightable elements drawn out in §102(b) of the 1976 Act.•The distinction serves two purposes:a)To distinguish (some of) what is in the public domain from what is eligible for copyright; andb)To establish a boundary line between patent and copyright protection.

Baker v. Selden101 U.S. 99 (1879)

A.A. Hoehling v. Universal CityStudios, Inc.618 F.2d 972 (2d Cir.), cert. denied,449 U.S. 841 (1980)