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Copyright Subject Matter Outline

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03. Copyrightable Subject matter: Exclusions and Types of Works
MML 528-42, 635-39, 558-79 17 U.S.C. §101 (architectural work, "audiovisual works," "compilation," "derivative work," "literary works," "motion pictures," "pictorial, graphic, and sculptural works,"
"sound recordings," "useful article"), 102, 103
Idea-Expression Distinction P.536 [24/01]
- s.102 Subject Matter of Copyright

(b) "In no case does copyright protection 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
- Protected expression, not protected for ideas

Economically inefficient to protect an idea - there are many method to express an idea

unfair to allow someone to monopolize an idea just because they got there firstBaker v Selden 101 U.S. 99 (1879) P.537

Facts: Selden created instruction manual for bookkeeping system which included
 (1) an introductory essay explaining the system of bookkeeping and
 (2) attached tables consisting of ruled lines, and headings, illustrating the system and showing how it the system would be carried out; defendant had altered the table slightly with different format/headings for the table

 Can claim copyright for the expression: the way of explaining how to use the system, introductory essay and explanatory text about the bookkeeping system.
 "Where the method is common, any author can express or explain it in his own way";
 but copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book
 No protection for the underlying idea (bookkeeping system itself)
 "The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself."
 The forms themselves: not copyrightable, even though you could argue that they are an expression.
o BUT court compared forms to other forms that had not been deemed to be copyrightable.
 Selden's claim is too broad - would have stopped people from using bookkeeping - should be under patent law and not copyright

more scrutinize requirements for patent law
 "description of the art in a book lays no foundation for an exclusive claim to the art itself (though entitled to the benefit of copyright)"
 blank account books are not the subject of copyright
 Such forms was necessary to use the system - to prevent copying of the forms would have the effect of prevent the use of the system - compared with other forms which are not allowed for patent (e.g. music scores)
1 Copyright

System (should be patented) vs. Expression (copyrightable)
"Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way."
"The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itselfBlank Form Doctrine

37 CFR §202(1)(c) "Blank forms, such as time cards, graph paper, scorecards, account book,
diaries, bank checks, address book, report forms, order forms… designed for recording info and do not in themselves convey info  not copyrightable  ineligible for registration"
o Not just about conveying information, but to convey the info in some way

Blank forms which are designed for recording information and do not in themselves convey information. BUT Some forms may convey information either by having expressive instructions or a lot more information on them (i.e. choosing list of diseases to put on medical form might need creativity and may be rewarded copyright)
o Constitutional: 1st Amendment - free speech - if we allow protection of ideas  unfair,
undermining a lot of speech, impracticable, uneconomicalNichols v. Universal Pictures Corporation (2nd Circuit, 1930)
o Facts: The plaintiff is the author of a play, "Abie's Irish Rose,". The defendant produced publicly a motion picture play, "The Cohens and The Kellys," which the plaintiff alleges was taken from it. Both used the idea of love affair between Jewish and Irish

Issue: Whether P's work is copyrightable? Was there infringement?
o Holding: No. The plaintiff's copyright did not cover all that might be drawn from her play; its content went to some extent into the public domain.
 The theme was basically an idea and the characters were mainly stock figures, which have been used for many decades. Similarities tended to be general things, universal concepts, and stereotypical characters.
 Used the abstraction test (supra) to distinguish idea and expression
 Different levels of abstraction - Some are more abstract than others
 Most abstract (Not protected):
o main idea of the story

plot outline


general characters and scenes

specific character elements

 Least abstract (Protectable expression)
 Filtration: originality, merger, scenes a faire, facts, historical events

Must apply abstraction and filtration to remove uncopyrighted material before investigating substantial similarity

Merger Doctrine
- Morrissey v Procter & Gamble (1st Cir. 1967)

2 Copyright



o o




Facts: P (Morrissey) is the copyright owner of a set of rules for a sales promotional contest of the sweepstakes type involving the social security number of the participants. P alleged D infringed by copying almost precisely Rule 1.
Held: Courts will not provide protection to expression if the idea embodied in the expression can effectively be expressed in only one or a limited number of ways.
 When there is only one or but a few ways of expressing an idea,
then courts will find that the idea behind the work merges with its expression and the work is not copyrightable
Idea behind the expression merges with the expression itself
Are there any other way to express? How many?
 Applies when there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work
 law doesn't want to protect the expression that communicates it
Usually applies to factual and functional works.
Sometimes just give thin protection - must replicate EXACTLY to get infringement
The more narrowly you define the idea, the more likely to find a merger problem (lots of wiggle room about fighting what the idea is)
 broader the idea, more ways there are to express the idea  less likely to have merger doctrine problem
 Fewer idea is  less way to express the idea  more likely to have merger doctrine problem
 "Where the uncopyrightable subject matter is very narrow, so that
'the topic necessarily requires,' if not one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.
Policy Implications of having more or less protection:
 Can usually argue about what idea is, which gives you wiggle room.
BUT makes it unpredictable.
 Do you want author to monopolize the idea itself?

Scènes à Faire - expressive
- Copyright does not extend to the "incidents, characters or settings which are as a practical matter indispensable, or at least standard in the treatment of a given topic." (Atari, Inc. v. N. Am. Phillips Consumer Elecs., 672 F.2d 607, 616
(7th Cir. 1982))
- To allow protection for such aspects of a work would unduly restrict subsequent authors in building their own works within general settings with which their audiences will relate
- "Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx." (Walker v.
Time Life Films, 784 F.2d 44, 50 (2d Cir. 1986))
- Can't protect if you want to do a scene in a certain context, you need to put it there to make it realistic 3 Copyright

Categories of Works of Authorship
- 17 U.S. Code § 102(a) Subject matter of copyright: In general
(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. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
- Not exhaustive - 'include' = illustrative and not limitative, sets out general area of copyrightable subject matter, but with sufficient flexibility, areas overlaps

Category can affect the right you get, e.g. sound recording

Infringement are considered differently

Offers room tailoring protection on different types of work
- § 103 Compilations and Derivative Works
- Distinguish the work of authorship from the form in which it is fixed (i.e. literary work vs. book, musical works vs. sheet music or recording)
(1) Literary Works

s.101 definition: "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects,
 such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied"  includes: computer software code,
o Legislative history: literary work includes:
 catalogs, directories, and similar factual reference, or instructional works and compilations of data
 computer databases, computer programs to the extent that they incorporate authorship in the programmer's expression of original ideas
 but words and short phrases such as names, titles and slogans are not subject to copyright

Scope: literal text and non-literal elements of work (e.g. structure,
sequence, organisation)
 But doesn't extend to the underlying ideas
 Words of a story and other expressive elements of its text are clearly protectable, but other elements, e.g. fictional characters, are not as clear.
(2) Musical and Sound recording

s.101 ""Sound recordings" are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the 4

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