[127] Fixation.

Under the [Act] it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device “now known or later developed.
               -Conference Report on the Copyright Act of 1976.

             The Act requires an authorized fixation. The one exception is that, since 1994, a live musical performance is protected, under federal law, against unauthorized fixation, as described at p. 170. Live spoken performances, or live conversations, are not covered by the Act, though they may be protected under some state theories of protection, as described generally at p. 222.

[128] Originality. 
As colorfully explained by Judge Learned Hand in Sheldon v. Metro-Goldwyn Pictures, a 1936 appellate court decision, “Borrowed the work must not be . . . ; but if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an ‘author,’ and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s [since Keats’s work is now in the public domain].” The problem is that no one would believe the man: the burden of proving independent creation might simply be too high.

[Photo of Sesame Street  characters,
including Dr. Nobel Price.
For a separate image of Dr. Price, see http://muppet.wikia.com/wiki/Dr._Nobel_Price]
 

[129] Dr. Nobel Price.
One of my favorite characters from the PBS program Sesame Street  was "Dr. Nobel Price" (lower right), who would spend long years in isolation inventing some new contraption. As he was explaining it to Ernie or some other Sesame Street  character—"it opens over your head and protects you from the rain"—any child would soon be shouting, long before Ernie pointed out the obvious, "It's an umbrella!" Poor Dr. Price, even if he hadn't ever seen an umbrella, and even if, in the copyright sense of the word, it was "original" to him, would not be able to patent it, because patent law imposes a higher level of creativity. Independent creation does not assure patentability. 

[129] The higher patent standard.
The lesson was also learned, the hard way, by Elisha Gray, who lost out to Alexander Graham Bell for the patent on the first telephone. Bell filed his application in New York City at noon on January 14, 1876; Gray filed his application in the same place two hours later. The litigation upholding Bell’s priority centered upon whether Bell had sufficiently “reduced” his invention to “practice,” as required by the statute, even though at the time of the application he did not have a working model of the telephone. In any event, Bell went on to develop the companies that became AT&T and the Bell Telephone system, and the stories of his first call to his assistant Thomas Watson and of his presentation of the telephone at the 1876 Centennial Exposition at Philadelphia have become a part of American folklore. Gray’s consolation prize was not complete obscurity: together with his partner, E. M. Barton, he formed a manufacturing concern that developed into the Western Electric Co., which was ultimately taken over by the Bell Company to become the world’s largest manufacturer of communications equipment.

[131] Other writings.
As originally introduced in 1790, the copyright bill would have protected not only books, maps, and charts, but also “other writings”; at the last minute, the phrase “other writings” was dropped, leaving only books, maps, and charts. Of the twelve states that had passed copyright laws under the prior Articles of Confederation, only three had specifically included maps and charts, while four had also protected “other writings” or “other literary works.”

[130] Telephone books. The Supreme Court stated, in Feist v. Rural Telephone Service  (1991):

We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural’s combined white and yellow pages directory. . . . [C]opyright protects only those constituent elements of a work that possess more than a de minimus quantum of creativity. Rural’s white pages, limited to basic subscriber information and arranged alphabetically, fall short of the mark.

 It is because of this doctrine and this case that the telephone companies have been helpless to prevent a plethora of new products and services using the information freely available from telephone books, such as complete United States-wide telephone directories on CD-ROM or on the Internet.

[130] That persistent copyright notice.
Even after the Feist case made it clear that telephone directories were not copyrightable, many telephone companies continued to place copyright notices in their directories. In this directory, from 1993, NYNEX placed a copyright notice on every page, so that a photocopy of any single page would be sure to pick up the notice!

[131] Insurance against international litigation.
Some further insight into the inclusion of maps and charts can be gleaned by looking at what materials the Library of Congress first ordered when it was funded in 1800.

The map question is intriguing. The book orders for the first quarter century are saturated with map purchases. At first glance they would seem to relate to the need to develop an unexplored country, but if you read the justifications it is apparent they were to be insurance against international litigation. It is clear that the early leaders all assumed the North American continent would be balkanized and ultimately end up as several different nations—either colonies or client states of their European parents. The legislators wanted all the proof they could get of where land claims had been made, borders set, settlements established—geographic precedents in ink and dated.                                                                        -Charles Goodrum

[Two New York subway maps
You can find them at
http://www.nycsubway.org,
particularly http://www.nycsubway.org/maps/historical/1964sm.jpg
and http://www.nycsubway.org/maps/historical/1972.jpg]
 

[132] The New York subway system.
Copyright 1964, New York City Transit Authority.

[132] The New York subway system.
Copyright 1972, New York City Transit Authority.

[133] The Gallery of the Louvre, by Samuel F. B. Morse.
In the foreground you can see several artists doing what all artists do to learn their craft—copying the works of the masters (which, of course, Morse himself did here with a vengeance). Don’t do this with modern painters whose works are still protected under copyright. You might add sufficient “original” elements to make your own creation otherwise copyrightable in its own right. But if the work is copied from a copyrighted work, it would also be a copyright infringement.

The Morse painting is described in a book by the Metropolitan Museum of Art:

Morse included such familiar masterpieces as Titian’s The Entombment, Raphael’s La Belle Jardiniere, and Leonardo da Vinci’s Mona Lisa. Morse regarded the painting, which he hoped would gain him a fair reward of money and fame, as an educational instrument, meant to benefit Americans who could not travel abroad to see the Louvre for themselves. The picture was unfinished when Morse left France late in 1832 on his historic passage to New York aboard the Sully, during which he conceived the idea for the electric telegraph.

On Morse’s invention, see p. 98.

[134] The Blue Boy.
Gainsborough’s Blue Boy, one of the Old Masters that was copied by Alfred Bell’s mezzotint engravers. Alfred Bell’s catalog pictured several different mezzotint engravings of The Blue Boy, confirming that different engravers could indeed render different interpretations.

[135] Mezzotint engraving. 
Carol Wax documents how the process of mezzotint engraving, by capturing texture in unprecedented detail, was ideal for creating reproductions of oil paintings.  The mezzotint became more popular, particularly in England, as a reproductive art than as a totally creative art.  Wax describes the symbiotic relationship that developed between painters and mezzotint engravers who, sometimes legally, sometimes illegally, mass-produced the painters’ works.  In England, the Hogarth Act of 1735 extended copyright protection to original engravings and etchings.  In 1776, the English Act was amended specifically to protect reproductive as well as original engravings.

[Second image omitted.
Click here for Bridgeman Art Library - Home page]
 

[135] Bridgeman’s transparencies for licensing.
Above is the Home page from the Bridgeman Web site, a modern source for transparencies of historical and contemporary images available for licensing. Bridgeman works with artists and museums to make their works available to a wide market. The digital market is now big-time: Microsoft has acquired the exclusive rights to hundreds of thousands of digital images, including (through Corbis, Inc.) the entire Bettmann Archives of historical photographs.

[136] Nobody cared anymore for war.
Mathew Brady was best known for his portraits of famous people and for his Civil War photographs. This picture is of a Napoleon gun from Cushing’s Battery at Antietam in 1862. Despite his success, Brady died virtually penniless. He had cut back drastically on his successful portrait business for the much more costly and risky business of war time photography. But with the completion of the war, it seems, nobody cared anymore for the pictures depicting it in such graphic detail. Although a collection of his Civil War photographs was eventually sold to the U.S. War Department for $25,000, most of that sum went to pay off Brady’s creditors. Other Brady pictures appear on pp. 33, 58, 208, and 232.

[137] Photographs.

By writings in that clause [of the Constitution] is meant the literary productions of those authors, and congress very properly has declared these to include all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list in the act of 1802 is, probably, that they did not exist, as photography, as an art, was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated, have all been discovered long since that statute was enacted.
                                                -Justice Miller, from the Sarony case.

This explanation is probably not the complete story, since the 1802 act did not include paintings and statuary either, even though they were clearly known to the people of the day.

[139] George Eastman, as a young photographer.
This cartoon shows George Eastman as a young man, carrying all of the equipment that was required to take and produce photographs prior to his simplification of the process.

[138] My first true visualization.
Ansel Adams, who specialized in taking pictures from nature, described in An Autobiography  how he first began to “visualize” pictures when he photographed Half Dome at Yellowstone National Park.

            I began to think about how the print was to appear, and if it would transmit any of the feeling of the monumental shape before me in terms of its expressive-emotional quality. I began to see in my mind’s eye the finished print I desired: the brooding cliff with a dark sky and the sharp rendition of distant, snowy Tenaya Peak. I realized that only a deep red filter would give me anything approaching the effect I felt emotionally.

            I had only one plate left. I attached my other filter, a Wratten #29(F), increased the exposure by the sixteen-times factor required, and released the shutter. I felt I had accomplished something, but did not realize its significance until I developed the plate that evening. I had achieved my first true visualization! I had been able to realize a desired image: not the way the subject appeared in reality but how it felt to me and how it must appear in the finished print. The sky had actually been a light, slightly hazy blue and the sunlit areas of Half Dome were moderately dark gray in value. The red filter dramatically darkened the sky and the shadows on the great cliff. Luckily I had with me the filter that made my visualized image possible.

“Luck” had little to do with it—Adams lugged forty pounds of equipment around Yosemite so he would have the right filter when he needed it. For an Adams photograph, see p. 160.

[139] Unprotected by copyright.
John Anderson argued that “American drama begins with [Augustin] Daly” (the plaintiff in the pantomime case, p. 59). “Until Daly’s time men of literary eminence could not be persuaded to take an interest in playwrighting because of the standards of production, because their work was unprotected by copyright and because the theatre had no interest in any quality beyond the effectiveness of a work on the platform.”

  
[140] Uncle Tom’s Cabin.
(Above right) From the first production in 1852,

 There were literally hundreds of theatrical companies (some extraordinarily proficient, some atrocious and amateurish) which toured Uncle Tom’s Cabin well into the early part of the twentieth century. It is said that Mrs. Stowe never made a penny from the dramatic adaptation.
                             -Joseph and June Bundy Csida.

This is the scene in which Eliza crosses the frozen river, from a 1901 production.

[141] The Great Wallace Shows.
One of the circus posters produced by Courier Lithographing Company in 1898.

[142] A dangerous undertaking.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.
                  -Justice Oliver Wendell Holmes,
                    Bleistein v. Donaldson
                     Lithographing Co. ( 1903)

[142] Uncle Sam.
Left, a metal replica of the original 1886 Uncle Sam mechanical bank (eleven inches tall), protected under a design patent which expired long ago. Right, a plastic replica (nine inches tall) that Jeffrey Snyder had made in anticipation of the bicentennial celebration, and in which he claimed copyright in 1975. The court held that Snyder’s bank lacked sufficient originality, and was therefore not protected under copyright.

[143] The Hand of God.
Here are several different versions of Rodin’s Hand of God. Although the plaster original was completed by Rodin in 1896, there were several authorized “executions” of the piece in marble and bronze. (This may help explain why the court was willing to find originality even in the making of copies.) At the left is the version in the New York Metropolitan Museum, upon which the defendants claimed they based their work. In the middle is plaintiff’s rendition, based upon careful measurements of the version in the Carnegie Museum in Pittsburgh. At the right is the defendants’ version.
            Although there are clearly elements of the defendant’s style that make that version distinctive, the plaintiff claimed that the defendants had taken plaintiff’s version, sanded down some of the details, and then added new details. The issue in the case was whether plaintiff’s version had sufficient originality to be protectable in its own right. The court held that it did. Another issue is whether defendant’s version is “substantially similar” to plaintiff’s (see p. 151). The court, in finding for the plaintiff, implicitly held that it was.

[144] Zapruder in the headlines.
Abraham Zapruder is still in the headlines over three decades later. Although he died in 1970, Time, Inc. transferred the copyright in his work to his heirs in 1975. The physical film—a quarter-inch wide and six-feet long—has resided in the National Archives. The government acquired ownership of the film in 1992 under a federal law requiring that all materials relating to the Kennedy assassination be transferred to the National Archives for preservation and research. The amount of compensation was ultimately left to arbitration; in 1999 the arbitration panel awarded the Zapruder heirs $16 million for the film. For the difference between ownership of copyright and ownership of the physical copy, see p. 212.     

[145] Labanotation.
At bottom left is an example of labanotation, developed by Rudolf von Laban, an early twentieth-century dance teacher and theorist. The notation is read from bottom to top, and the bar lines correspond to the bars of music. In the diagram at left, shapes indicate the direction of movement. At the right, the placement on the staff indicates the part of the body doing the movement. The shading indicates whether the movement is done by the upper, middle, or lower portions of the body or limb.

[145] Jump!
The “splash” of movement indicated in measure 577 (left) can be seen in the corresponding movement of the dancers (right). The excerpt and photograph are from Paul Taylor’s Eventide.  As indicated by the measures before and after, the jump is taken from—and returns to—a relatively serene state.

[Photo of two dancers
facing each other, jumping]

[146] Doing justice under the earlier law.
Under the prior law, blueprints were protected as drawings, but the buildings depicted in the blueprints were not protected, since they were “works of utility.” So, strangely, second comers couldn’t copy blueprints, but they could theoretically build the building depicted in the blueprints. Many courts were able to grant indirect protection for buildings by prohibiting the copying of blueprints, without which the second building could not be built. A federal court was able to grant an injunction against the building of the “copycat” home at right because it had been based upon plans traced from those of a luxury home by Chris Demetriades just up the block, at left. Today, a suit could be based upon the copyright in the building itself, whether or not the blueprints were copied.

[Photographs of two homes,
one by Chris Demetriades and the other
a mirror-image lookalike]

[Movie still from The Maltese Falcon,
Click here to see some different stills.]

[147] The Maltese Falcon.
Humphrey Bogart (holding the Falcon), Peter Lorre, Mary Astor, and Sydney Greenstreet in the 1941 movie version of the novel.

[Slightly different frame from the one in the book]

[148] Spark Plug.
A federal court held that a three-dimensional toy (far right) infringed the character known as “Spark Plug” or “Sparky” from the Barney Google comic strip (right). The defendant in the case had actually applied for a design patent in the doll. Below is a picture of several Sparky dolls in a store window, showing that the dolls were indeed becoming the “sensation of 1923.”

[Poster of Tarzan and His Mate.
Click here and scroll down to see
the poster.]
 

[148] Superman.
A federal court held that an all-powerful “Wonderman” infringed upon the character of Superman.

[149] Lolita.
Controversy has surrounded the publication of Pia Pera’s version of Lolita told from the viewpoint of Lolita. The press seemed to go out of its way to suggest that there were legitimate legal arguments on both sides. I confess that this looks to me like a clear infringement, based upon the taking of the characters as well as much of the plot of the Nabokov story. Pera was free to take the “idea” of a Lolita-like character, or to develop her own story of an older man’s obsession with a young woman; but she was not free to appropriate Nabokov’s characters. The case was ultimately settled when Nabokov’s son, Dmitri, authorized publication on condition that he receive a commission, and that he be allowed to write a preface, which he did.

[149] Hopalong Cassidy.
William Boyd, the actor who played Hopalong Cassidy in film and on television (far left), bought up the rights in the character from Clarence Mulford, the author, and various other parties (see the diagram on p. 166). Boyd is credited with the first major—and incredibly successful—merchandising campaign based upon a television character.