Chapter 9: Copyright

Where does Congress get the power to create copyright laws?

From Article I, Section 8 of the U.S. Constitution.

What is the purpose of copyright according to the Constitution?

To promote the progress of science and the arts by giving creators exclusive rights to their works for a limited time.

What types of intellectual property did the Constitution allow Congress to protect?

Copyrights and patents (and later, trademarks).

What year did Congress pass the first copyright law?

1790.

What is the most important modern copyright law?

The 1976 Copyright Act.

Why has the 1976 Copyright Act been amended over time?

To keep up with new technology, like digital media and the internet.

What does the 1976 Act say about what copyright protects?

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

What two key concepts are central to copyright protection?

Fixation and originality.

What does “fixation” mean in copyright law?

A work must be fixed in a tangible medium of expression — meaning it’s written, recorded, or stored in a way that can be perceived or reproduced.

What is a “tangible medium”?

Something that physically exists, such as paper, a CD, a hard drive, or a server.

When does copyright protection begin?

Automatically when the work is fixed in a tangible medium.

Do you have to register a work for copyright protection?

No, but you must register it to file a lawsuit for infringement.

Is the definition of “fixation” broad or narrow?

Very broad — it includes physical and digital storage.

Give an example of fixation for a written work.

A story printed in a magazine, book, or newspaper.

Give an example of fixation for a musical work.

A sound recording stored on a CD, tape, or vinyl.

Give an example of fixation for a digital work.

A file saved on a computer hard drive or the cloud.

Is something still “fixed” if it can be edited or deleted later?

Yes. Once it’s saved, it’s fixed in that medium.

Why are online materials considered “fixed”?

Because everything on the internet is stored on a physical server somewhere.

Does something online need a copyright symbol to be protected?

No. It’s protected automatically once it’s fixed.

What should you always assume about anything found on the internet?

That it’s protected by copyright and requires permission to use.

What are the two key concepts in the 1976 Copyright Act?

Fixation and originality.

What’s the main takeaway about fixation and copyright protection?

Once a work is fixed in a tangible medium, it’s automatically protected by copyright — no symbol or registration required.

What is the second key concept in the 1976 Copyright Act after fixation?

Originality — a work must owe its origin to the author.

Does a work need to be highly creative or novel to be original?

No. It only needs a minimal amount of originality — enough to show it comes from the author.

What case did the U.S. Supreme Court use to define originality in 1991?

Feist Publications, Inc. v. Rural Telephone Service Co

What were the facts in Feist Publications v. Rural Telephone?

Feist used Rural’s white pages for a regional directory without permission; Rural sued.

Can facts themselves be copyrighted?

No. Facts exist independently of an author’s creation.

When can a compilation of facts be copyrighted?

Only if the selection or arrangement of the facts shows originality.

Why were Rural’s white pages not copyrightable?

• Subscribers selected themselves (no author selection)

• Alphabetical arrangement is standard/inevitable, not original

What is the key principle from Feist Publications v. Rural Telephone?

Feist used Rural’s white pages for a regional directory without permission; Rural sued.

Can facts themselves be copyrighted?

No. Facts exist independently of an author’s creation.

When can a compilation of facts be copyrighted?

Only if the selection or arrangement of the facts shows originality.

Why were Rural’s white pages not copyrightable?

• Subscribers selected themselves (no author selection)

• Alphabetical arrangement is standard/inevitable, not original

What is the key principle from Feist?

Copyright protects expression, not facts.

How does the “thin protection” principle work for factual works?

Others can use the same facts if they express them differently.

Example of thin protection: Gene Miller’s 83 Hours Till Dawn vs. The Longest Night

Universal Studios could use the same facts of the Barbara Mackle kidnapping as Miller, as long as they expressed them differently.

Who can create copyrightable works?

Only works that owe their origin to a human author.

Are works created by natural processes, animals, or machines copyrightable?

No. They cannot be copyrighted.

Case: AI-generated art — A Recent Entrance to Paradise

Created by a computer program; denied copyright due to no human authorship.

Case: AI-generated graphic novel — Zarya of the Dawn

Text/story (human-written) protected; AI-generated images not protected.

Case: Monkey selfies — Naruto the macaque

Monkey took the photo, not human → no copyright. PETA claim dismissed.

What does the originality requirement protect?

The expression of ideas/facts, not the facts themselves.

Quick summary of originality rules:

• Minimal creativity/origin required

  • Facts ≠ copyright

  • Expression = protected

  • Must be human-authored

Can copyright protect works that are not fixed in a tangible medium?

No. Example: a dance or pantomime not written or recorded.

Can titles, names, short phrases, or slogans be copyrighted?

No. They may be protected under trademark law, not copyright.

Are lists of ingredients copyrightable?

No. But the accompanying instructions or descriptions can be copyrighted.

Can ideas, procedures, concepts, principles, or discoveries be copyrighted?

No. Only the written or recorded expression can be copyrighted. Patents protect processes or discoveries.

What is “scène à faire”?

Standard or required elements of a genre (e.g., a Western gunfight). The idea isn’t protected, but the specific way it’s expressed is.

Name some types of works copyright does protect.

Literary, musical, dramatic, pantomimes/choreography, pictorial/graphic/sculptural, motion pictures/audiovisual works, sound recordings, architectural works.

Can computer programs be copyrighted?

Yes, they can be registered as literary works.

Can parts of a work be independently copyrighted?

Yes. Example: fictional characters or distinctive elements (e.g., the Batmobile in DC Comics v. Towle).

Do you need to register a work with the US Copyright Office for protection?

No. Copyright exists as soon as the work is fixed, but registration is required to sue for infringement.

What are the benefits of copyright registration?

• Legal standing to sue

  • Provides a copyright certificate

  • Allows a notice of copyright to alert others

  • Prevents orphan works

What is the format of a copyright notice?

© [year] [owner name] or “Copyright” / “Copr.” with year and owner.

What exclusive rights does a copyright owner have?

1. Reproduce the work
2. Prepare derivative works
3. Distribute copies
4. Perform the work publicly
5. Display the work publicly

What is a derivative work?

A new version or adaptation of an original work (e.g., movie from a novel, photo into painting).

Who owns copyright if you buy a physical copy?

The copyright remains with the creator; buying a book or letter does not give the right to copy or publish it.

Example illustrating ownership vs. copyright?

A letter you receive:

• You own the paper.

• Writer owns the copyright to the words.

What two things must a copyright owner prove to establish copyright infringement?

(1) Ownership of a valid copyright, and (2) Copying of the original work by the defendant.

What serves as prima facie evidence of copyright ownership?

A copyright certificate.

Who carries the burden of proving a copyright is invalid?

The defendant.

What two things must a plaintiff prove to show the defendant copied the work?

(1) The defendant had access to the work, and (2) there is evidence of copying.

When is access to a work presumed?

When the work has been published.

What must be shown if the work is unpublished?

The plaintiff must prove the defendant saw, read, or heard the work.

What is direct evidence of copying?

Testimony or documents showing the defendant actually copied the work.

What is indirect (circumstantial) evidence of copying?

Proof of substantial similarity between the two works.

How has AI complicated copyright law?

AI programs train on existing copyrighted works, raising questions about whether this constitutes infringement.

What might Congress need to do because of AI-related copyright issues?

Revise the Copyright Act to address AI’s use of copyrighted materials in training.

What is “substantial similarity”?

A key issue in infringement cases — whether an average person would view the two works as having the same overall impression or feel.

How did Judge Learned Hand define substantial similarity (1960)?

When an ordinary observer would overlook differences and see the works as having the same aesthetic appeal.

How did the Second Circuit define substantial similarity?

When an average lay observer recognizes the copy as having been appropriated from the original.

How did the Ninth Circuit define substantial similarity?

When an ordinary observer feels the defendant captured the “total concept and feel” of the plaintiff’s work.

What are the two parts of the Ninth Circuit’s “total concept and feel” test?

(1) Extrinsic test: Objective comparison of ideas.
(2) Intrinsic test: Subjective comparison of expression and overall impression.

What does the extrinsic test evaluate?

Objective factors like materials, subject matter, type of work, and setting.

What does the intrinsic test evaluate?

Whether an ordinary person would feel the copy captured the “total concept and feel” of the original.

Who is the similarity test based on — experts or ordinary people?

Ordinary observers, though expert testimony can sometimes help.

Must the defendant copy every detail to be liable for infringement?

No — some differences are fine as long as the similarities are more significant.

Can ideas be copyrighted?

No, only the expression of ideas can be copyrighted.

What do courts compare in literary works to determine substantial similarity?

Structure, pacing, and themes to see if the “concept and feel” were taken.

What are the two key elements to prove in a copyright infringement case?

Ownership and Copying (which includes access + substantial similarity).

For what type of works does Judge Daniels’ similarity analysis work best? (Brown v. Perdue)

Narrative works, like novels.

Why doesn’t Judge Daniels’ method work as well for graphic or musical works? (Brown v. Perdue)

Because those works rely on visual or auditory elements, not story structure.

How do courts determine similarity in graphic or musical works?

By closely analyzing both works to see if an ordinary observer would think one copied the other.

Who created The New Yorker cover at issue in the Steinberg case?

Artist Saul Steinberg in 1976.

What did Steinberg’s New Yorker illustration depict?

A satirical map showing Manhattan large and detailed, with the rest of the world drawn small and simplified.

What idea did Steinberg’s map parody?

The narrow, self-centered worldview of New Yorkers.

What movie poster allegedly copied Steinberg’s illustration?

Columbia Pictures’ 1984 Moscow on the Hudson poster.

What visual similarities did the court note between the Steinberg and Columbia posters?

Childlike block lettering, similar building styles, and minimalist map details.

What did the Columbia poster artist admit in the Steinberg case?

That he had referred to Steinberg’s illustration while designing the poster.

What did the court decide in the Steinberg case?

The two images could easily be mistaken for one another — showing substantial similarity.

What concept does the Steinberg case illustrate?

Substantial similarity can exist even without identical copying.

What two songs were at issue in George Harrison’s copyright case?

Harrison’s “My Sweet Lord” and The Chiffons’ “He’s So Fine.”

Who sued George Harrison for copyright infringement?

Bright Tunes Music Corp., the owner of “He’s So Fine.”

What two motifs did the court compare in the Harrison case?

• Motif A: “sol-mi-re” repeated 4 times.

• Motif B: “sol-la-do-la-do,” later with a grace note.

What did the court rule about George Harrison’s intent?

Intent didn’t matter — he was liable for subconscious plagiarism.

What is subconscious plagiarism?

Unintentionally copying a work because of previous exposure.

What were the damages initially and finally in the George Harrison case?

About $1.6 million originally, reduced to under $600,000.

Why did George Harrison’s damages get reduced?

His former agent Allen Klein breached his fiduciary duty by buying Bright Tunes.

What songs were in dispute in the Marvin Gaye case?

Gaye’s “Got to Give It Up” and Robin Thicke’s “Blurred Lines.”

Who sued in the Marvin Gaye case?

Marvin Gaye’s heirs.