INTRO TO IP LAWFALL 2009: CLASS 2

Professor Fischer

Copyrightability: The Originality and Fixation Requirements

AUGUST 25, 2009

Big Picture Theme

• Copyrightability (Unit II): What subject matter is protected by copyright law?

Constitutional Question

• U.S. Constitution Article I, § 8, cl. 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”

Originality Requirement

• 17 U.S.C. § 102(a) –

Originality Requirement

“Copyright protection subsists in original works of authorship fixed in a any tangible medium of expression . . . .”

Originality Requirement

Is there a statutory definition of “Original”?

Bleistein v. Donaldson Lithographing Co. (1903) [C p. 309]

Burrow-Giles Lithographic Society v. Sarony (1884)

• Is a photograph copyrightable?

Is a snapshot, like this one of my dog Nicole, copyrightable?

2 requirements of originality

• What are they?

COPYRIGHTABILITY: ORIGINALITY

REQUIREMENTTwo aspects: • (1) independent creation • (2) at least some minimal

degree of creativity • See Feist, 499 U.S. 340 (1991)

[C p. 315]

Problem 6-1 at C p. 314

• Identify all possible sources for originality in the “Blackmon” photo at left

• See Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005)

Problem 6-2 at C p. 326

• See Bridgeman Art Library v. Corel Corp., 25 . Supp.2d 421 (S.D.N.Y. 1998)

Constitutional Basis for Fixation Requirement?

Constitutional Basis

• U.S. Constitution Article I, § 8, cl. 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”

Statutory Basis for Fixation Requirement?

17 U.S.C. § 102(a)

• Copyright protection 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.”

17 U.S.C. § 101

• “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” . . . if a fixation of the work is being made simultaneously with its transmission.”

• Williams Electronics, Inc. v. Arctic International (3d Cir. 1982) [C p. 329]

Wrap-Up

• To be copyrightable, a work must be original and fixed in a tangible medium of expression.

• While the originality requirement is a low threshold, some works will not satisfy it, and will therefore not be protectable under copyright law.