The Illustrated Story of Copyright
© 2000 by Edward Samuels

Return to Contents

[125]

Part Two
_____________________

Copyright Basics

[127]

CHAPTER SIX

_____________________

 

What Does Copyright Protect?

 

 

 

 

Originality

 

[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.

Some sense of the range of copyright can be gleaned by looking at the many types of works covered by the current copyright statute. These include books, drama, dance, music, sound recordings, pictures, photographs, sculpture, architecture, movies, and computer programs. Later in this chapter, we’ll take a closer look at each of these types of work, and see how they each came to be added to the list of works eligible for copyright.

 

            However, the key language of the statute is not in the categories, but in the section defining the subject matter of copyright. According to the statute, “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. “

 

            Under this statute, there are thus two core concepts:  originality” and “fixation.” The latter, “fixation,” is relatively easy to understand. It requires that a work, to be protected under the federal statute, must be recorded in some way, so that it exists in at least one copy.

 

[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.

[128]   The more difficult concept is that of “originality.” Congress intentionally left the term “original works of authorship” undefined, but indicated in the Conference Report that “it is intended to incorporate without change the standard of originality established by the courts under the [previous] copyright statute.” Thus, in order to understand the concept, it is necessary to have some knowledge of earlier statutes and earlier cases.

 

            That the threshold of copyrightability is quite low is made clear by a long line of cases, including a 1903 Supreme Court case in which Justice Oliver Wendell Holmes suggested that almost any creative effort, however modest, would suffice.

 

 

(Another famous quote from the case, Bleistein v. Donaldson Lithographing Co., can be found on p. 142.)

 


[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.

            The low level of creativity required by the “originality” standard can be best understood by contrasting it with the relatively high standard of creativity required for patents.* A patent is the exclusive right to “make, use or sell” a “new and useful process, machine, manufacture, or composition of matter.” While copyright deals primarily with the aesthetic, patent deals with the functional. But patent rights are granted only sparingly. Before a patent is issued, the inventor must demonstrate that the invention is “novel”—that is, that “the world ain’t never seen it before” (to paraphrase Busby Berkeley). The invention must be “non-obvious”—that is, not obvious “to a person having ordinary skill in the art” to which it pertains. By contrast, under the originality standard of copyright, an author gets a copyright in an independently created work even if the work is similar to a pre-existing one, so long as the author did not in fact copy the preexisting work. 

 

*Patent, see p. 219.

 

[129]    Originality does require, however, at least some minimal level of creativity. For example, in a recent case, the Supreme Court held that a company that compiled a telephone directory, listing all of its customers alphabetically, could not get a copyright in the work. The directory was just a compilation of facts,* and facts themselves are not copyrightable because facts exist independently, and “do not owe their origin to an act of authorship.” Although someone may copyright the original language in which facts are described, or an original “compilation” of facts, the compilation in the case of an alphabetical listing of customers and their telephone numbers did not involve sufficient creative choices to qualify the work as original.

 

*Facts, see p. 187.

 

[130]    The requirement of some minimal level of creativity reflects the policy of copyright that we generally want to reward those who have made some sort of contribution to “learning” or “art.” As stated by Professor (later Judge) Benjamin Kaplan, “to make the copyright turnstile revolve, the author should have to deposit more than a penny in the box.”

 

            We’ll now turn to the different types of work eligible for copyright. But we’ll continue, in the context of each category, to explore the intricacies of the originality standard.
 

[131]   

What Kinds of Works Are Protected?

 

Books, 1790

 

[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.”

Books* have been protected under copyright since its inception. The 1976 Act makes clear that coverage extends not only to traditional books, but to all “literary works . . . expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects . . . in which they are embodied,” including “books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards.”

 

*Books, see p. 15.
 

[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!

 

Maps and Charts, 1790

 

[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.

In addition to books, the only works specifically mentioned in the original 1790 copyright act were maps and charts. By “charts,” Congress presumably did not mean tables of information, but rather navigational charts. But there’s woefully little explanation of why Congress singled out these works for protection, other than the obvious value of rewarding the makers of maps and charts in a young country. Americans wanted to encourage the likes of Meriwether Lewis and William Clark to go out and chart uncharted lands (though Lewis and Clark’s maps,† from the expedition paid for by the U.S. government,‡ were uncopyrightable, being government works).

 

†Lewis and Clark map, see p. 215.

‡Government works, see p. 215.

 

            What does it mean to make an “original” map? Some cases once suggested that originality required that the cartographer obtain the information for the map from direct surveying, by “the sweat of one’s own brow.” But the Feist  case has clearly repudiated the premise that labor and effort can constitute or substitute for originality. Instead, originality consists of the “selection, arrangement, and presentation of the component parts” of a map, and has more to do with the design by which the information is presented than with the information itself.

 

[132]    To see how this works in practice, let’s take a look at two maps of the New York subway system. The first was a special map highlighting the 1964 World’s Fair, published by the New York City Transit Authority in that year. Assume that you were hired to produce a new, clearer, more graphically appealing subway map, and came up with the second map—the one in fact published by the Transit Authority in 1972. Although very differently presented, most of the information for making the second map can be derived from the earlier map, without any particular need for independent surveying or even verification. Is the new map sufficiently “original” to be eligible for copyright? Of course! The originality is in the [133] presentation, not in the information. So, obviously, what we are encouraging under copyright is not just the surveying of new lands and new systems, but also the development of new ways of representing those lands and systems.
           

Prints, 1802

 

[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.

In 1802, Congress provided that any person who “shall invent and design, engrave, etch or work . . . any historical or other print or prints” could obtain a copyright in the print. Interestingly, it was not until 1870 that paintings, drawings, and sculptures generally were added to the list: so why did Congress only grant protection for this much narrower category of etching or print?  The statute obviously was designed to encourage the mass production of works, including not only original designs, but also copies of older paintings. Remember, this was all before photography. Classic art (mainly European masterworks) was known in this country almost exclusively through copies made and distributed by other artists, and it would make sense to encourage the “importation” of classic works by granting copyrights to those who “made” the imported versions. But what does it mean to make an “original” “etching” of an “historical” print?

 

[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.

[134]    Some insight can be gleaned from more-recent cases. In the 1940s, Alfred Bell & Co., a British print producer and dealer, made and sold mezzotint engravings of several Old Masters, such as Gainsborough’s Blue Boy. Catalda Fine Arts, Inc., an American lithograph company, unable to gain access to the same paintings because of exclusive museum dealing arrangements, made lithographs of Alfred Bell’s engravings. Alfred Bell sued for copyright infringement. But where was the “originality” in their engravings? Weren’t they just copies of the works of Gainsborough and the other Old Masters, in which copyright, if it was claimed, would long ago have expired?

 

             The district court in New York, and then the federal appellate court, had no difficulty in finding the requisite level of originality. The courts emphasized that the making of mezzotint engravings was a highly skilled craft that required creative choices, among other things in the pulling of a hand tool across the plate of the engraving, to properly imitate the texture of the original oil painting. No two mezzotint engravings are exactly the same, although of course, the goal of each engraver is to reproduce as faithful a copy of the original work as the medium allows.

           

            The appellate court discussed the meaning of “original” in this context:

 
 

[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.

            In a 1999 case, Bridgeman Art, Inc., held an exclusive license from dozens of art museums to distribute transparencies and license the printing of copies of many of the museums’ Old Masters. Bridgeman sued Corel, Inc., claiming that Corel was selling prints that had been copied from Bridgeman’s prints. The court held in favor of Corel on several grounds, including the ground that Bridgeman’s transparencies were not entitled to copyright because they were photographic likenesses of public domain works. The copies they made, though perhaps [135] requiring some skill, had no distinguishable variations from the works that were in the public domain. The case raised some alarm among museum directors who have come to count on revenues they make by selling exclusive rights to make prints of works in their collection. The case makes clear that the only exclusive rights they have are in the distinguishable variations of the copies.
 



[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.

             A tension is set up by this reasoning, however, that continues to plague copyright to this day. A historical print is protected under copyright because it is original; but it’s not the originality of the print that we value. If we purchase a mezzotint engraving of Thomas Gainsborough’s The Blue Boy  (c. 1770), we don’t want to find any “original” variations by the engraver, we want the work to be an exact replica of Gainsborough’s. The same tension was evident to some extent in allowing maps and charts copyright protection: maps are protected only to the extent that they present information in an original way, but we usually value the map not for the originality of the presentation but for the information conveyed.

 

            Although expanded to include pictorial, graphic, and sculptural works generally, the 1909 act still separately [136] listed “reproductions of a work of art”; and the 1976 Act still separately mentions “art reproductions” as within the scope of “pictorial” works.
 

Music, 1831

 

Although music* was not specifically added until 1831, composers did register their sheet music before then under the category of “books.” Since performance rights† were not granted in music until 1891, copyright during most of the nineteenth century effectively only protected the printing of sheet music.

 

*Music, see pp. 31 and 162.

†Performing rights, see p. 168.

  Photographs, 1865

 

[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.


In 1865, Congress added “photographs and the negatives thereof” to the list of protected works. It’s curious that photography was embraced within copyright so soon after its invention, five years before the inclusion of paintings and sculpture generally, and about a hundred years
[137] before some major museums began to recognize photography as a serious art form. But it’s obvious why Congress wanted to grant protection. During and after the Civil War, pioneering photographers like Mathew Brady were bringing back incredible photographs of the war and of the American western expansion. Congress wanted to encourage such efforts, and copyright was the accepted vehicle for granting creative people rights in the works they created. It probably also helped that Brady had photographed portraits of many of the leading politicians of the day—Lincoln and his wife and his cabinet, Webster, Calhoun, Clay—and, in his lifetime, over a dozen past or current presidents. So the politicians would have been quite familiar with the photographic process and its incredible power.

 

            But are photographs the sort of “creative” works that copyright was intended to protect? After all, most photographers don’t “create” their pictures so much as “capture” the images that already exist in nature.

 

[137] Oscar Wilde, by Napoleon Sarony.

            Here’s how the test case was brought to the Supreme Court. In the 1880s, Oscar Wilde gave a successful series of lectures throughout the United States. Napoleon Sarony, a New Yorker who specialized in photographing visiting celebrities, took a series of portraits of Wilde in his “aesthetic lecturing costume.” During the rest of Wilde’s tour, the Burrow-Giles Lithographic Co. sold about eighty-five thousand unauthorized copies of the Sarony photographs. Sarony, of course, sued for copyright infringement. In 1884, the Supreme Court summarized the issue as one of Constitutional dimensions: was a photograph a “writing” of an “author,” within the Constitution?* If not, then Congress was without authority to include photographs within the copyright statute.

 

*U.S. Constitution, see p. 13.

 

            Burrow-Giles’ argument was that “a photograph is the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture.” In other words, it involved no “originality” of the photographer.

 

[138]    The Supreme Court conceded that “in regard to the ordinary production of a photograph,” this may be true, but that, in Sarony’s case, the photographer’s contributions were considerable. The Court approved the district court’s finding that the photograph in question was a

Quite an early victory for the auteur  theory! It almost sounded as if Wilde were only incidental to the creation of the Sarony photograph.
 

[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.

            It is important to remember that, in the early years, photography was not as ubiquitous or as convenient as it is today. With “wet plate” photography, the photographer’s plate—made of heavy glass—had to be processed before it dried, requiring photographers to literally carry their dark rooms with them if they ventured out of their studios. All of this changed only when George Eastman* developed the revolutionary “dry plate” method of photography in the 1870s, and the paper filmstrip in the 1880s. Then he introduced his famous Kodak box camera, along with a film developing service that allowed amateurs to take professional-looking pictures. The early photographers complained that now anyone could take “snapshots.” They sounded about like the early radio or Internet fans [139] who in their days would bemoan everyone else nudging into their territory.          

 

*George Eastman, see p. 56.

 

            Although the Court distinguished Sarony’s photograph from the “ordinary,” later cases made clear that just about any photograph,* short of a photocopy, contains sufficient selection of elements to meet the threshold level of originality required by the Constitution and by the statute.

 

*Photographs, see p. 159.

 

[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.


Drama, 1870

 

[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.”

Congress first added “dramatic compositions” in 1870. We’ve already seen how the protection of dramatic works, including pantomimes,† was greatly expanded with the advent of motion pictures in the twentieth century.

 

†Pantomimes, see p. 59.

 

            Why did Congress add dramatic works only in 1870, even though drama had been known since at least the time of the ancients? To some extent, the snub may have reflected an eighteenth-century distrust, or even disdain, of the theater. (Alexander Cowie cites a “lack of affinity between Puritanism and art.”) In colonial days, several states, and even the federal Congress under the Articles of Confederation, had passed laws prohibiting or severely limiting theater. It’s also possible that there simply weren’t many early American playwrights, so that the need for protection did not appear strong (although it would be hard to prove whether the lack of playwrights produced the lack of protection or the other way around).

 

[140] Harriet Beecher Stowe.

  [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.

            The breakthrough in attitude probably came about through the remarkable success of others in dramatizing Harriet Beecher Stowe’s Uncle Tom’s Cabin  (written in 1851-52) without paying her any compensation. The injury was compounded by the fact that, at that time, translations were also not covered by copyright, so Ms. Stowe also received nothing for the hundreds of translations [140] of her works into other languages. Her injury was compounded even further by the woeful state of international copyright protection. These injustices were ultimately righted in the copyright amendments of 1856 (covering translations*), 1870 (covering drama), and 1891 (improving international protection for foreign authors,† and thus triggering better protection for American authors abroad). But all of this came too late to help Stowe, whose rights were governed by the prior law.

 

*Translations, see p. 168.

†International protection, see p. 236.

 

Paintings, drawings, and sculpture, 1870

 

Also in 1870, Congress extended copyright to cover “a painting, drawing, chromo, statue, statuary, and . . . models or designs intended to be perfected as works of the fine arts.” It’s not at all clear why it took Congress so long to get around to the graphic arts, but it must have seemed somewhat illogical to protect photographs, on the ground that their creation involved some level of creativity, but not paintings and sculpture, which arguably required a higher degree of talent and creativity.

 

            The reference to “fine arts” opened a Pandora’s box that perhaps helps to explain Congress’s reluctance to get into the field in the first place. Did the reference to “fine arts” limit only the immediately preceding phrase, “models and designs,” or did it imply that paintings, [141] drawings, and statuary were to be measured by a higher “fine arts” standard as well? In 1874, Congress attempted to clarify the coverage of the act by providing that “the words ‘Engraving,’ ‘cut,’ and ‘print’ shall be applied only to pictorial illustrations or works connected with the fine arts.” Whatever this may reveal about Congress’s intent to take the fine arts high road, it was somewhat undermined by specific provisions in 1882 for notice on “designs for molded decorative articles, tiles, plaques, or articles of pottery or metal.” The question remained: was copyright available only for “fine” arts, and, if so, how were judges supposed to draw the line between the fine and not-so-fine arts?

 

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

            The definitive Supreme Court case came about as follows. The Courier Lithographing Co. created several circus posters advertising The Great Wallace Shows. Courier later sued Donaldson Lithographing Co. for making unauthorized copies of three of Courier’s works, apparently also for advertising use by Wallace. The lower courts, following the accepted wisdom of the day, held that mere “advertisements” were not eligible for copyright, and that there was nothing “useful” or “meritorious” about the work to make it deserving of such protection. Justice Holmes, however, scoffed at such an outcome. The circus posters clearly [142] involved sufficient creative effort to qualify them for copyright protection. The Supreme Court reversed the lower court decisions, and granted protection.

 

[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)

            What was left of the higher “fine arts” standard? Not much. So it’s not surprising that when Congress recodified copyright in 1909, it dropped the limiting language, and protected all “works of art”—whether “fine” or not.

 

             There may still be a lingering “fine arts” bias in some court opinions. In a 1959 case, a scale replica of Rodin’s Hand of God  was granted copyright protection, even though the court found no significant variations from Rodin’s original work except for the scale and the medium. Yet, in a 1976 case, a plastic model of an antique Uncle Sam mechanical bank was held not to be copyrightable, even though the court conceded several distinguishable variations from the original. So what is the meaning of originality in this context? Are the cases consistent? Might one of them be “wrong”? Are they [143] reconcilable on the ground that the Rodin replica is “fine” art and the Uncle Sam bank is “junk” art? These are all questions that law professors love to ask, although we are quick to insist that our purpose is to make students think, not—or at least not only—to confuse them.
 

[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.

[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.


 

Movies, 1912 

As we’ve seen, movies* have been included within the scope of copyright since their inception, and have been specifically enumerated since the copyright amendment of 1912. One interesting case again raised the issue whether an “ordinary” photograph or movie, without particular artistic pretensions, exhibits sufficient “originality” to be protectable under copyright.

 

*Movies, see p. 57.

 

[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.     

            In 1963, Abraham Zapruder† took what would have been an ordinary home movie of a presidential motorcade, but for an extraordinary event beyond his control. He happened to have taken the best actual footage of the assassination of President John F. Kennedy. He immediately [144] realized the value of his film, and sold it to Time, Inc. for $150,000. Clearly, the movie was valued not because of its aesthetic quality, but for the crucial information it happened to contain about an important historical event.

 

 †Zapruder film, see p. 202.

 

            When the issue of originality was raised in a federal district court, the court cited other cases suggesting that all photographs and movies are protectable, no matter how modest their artistry. The court nevertheless felt it necessary to emphasize just how much control Zapruder had over the final product, stating that “The Zapruder pictures in fact have many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated.” In fact, Zapruder tried out several sites before he chose a vantage point overlooking the spot where the motorcade would have to slow down to make a sharp turn.
 

Computer Programs, 1964, 1976

 

Computer programs* have been considered protected as “literary works” ever since the Copyright Office† started accepting registration of them in 1964. Whatever doubt may have existed under the prior law, the 1976 Act and its legislative history make the coverage of computer programs clear.

 

*Protection of computer programs, see p. 79.

†Copyright Office, see p. 177.

 

Records and Tapes, 1971

 

In the 1971 Sound Recording Amendment,‡ records and tapes were given their own separate protection, in addition to the protection already accorded the underlying musical works.

 

‡Sound recordings, see p. 44.

 

Dance, 1976

 

[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]

Some dance was eligible for copyright under prior law, but only if it told a dramatic story that qualified it under “drama.” It was not until the general [145] overhaul of copyright in 1976 that a specific category was created for “choreographic works.”

 

            Dance is hardly a new art, and it’s not clear why earlier Congresses did not see fit to protect it, or what happened in recent years to convince the new Congress that it should. About the only “modern” development is labanotation and Benesh movement notation, systems for transcribing dance steps. However, many new dance works are not recorded, either by labanotation or in film, and so don’t qualify for federal copyright protection under the separate “fixation” requirement.*  

 

*Fixation, see p. 127.
 

 [146]

Architecture, 1990

 

Works of architecture were added to the list of copyrightable works only in 1990. Later, we’ll look at the “works of utility” doctrine.* Under that doctrine, architectural works, like other works of utility, were not generally protected under federal copyright. However, it’s easy to understand why architecture was eventually added to the list of copyrightable works. In 1988, the United States ratified the International Berne Copyright Convention,† and under its terms, was required to grant protection to architectural works.

 

*Works of utility, see p. 185.

†Protection of architectural works under Berne, see p. 245.
 

[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]

 

 

Boat Hull Designs, 1998

 

Another category of work that was not protected by federal copyright under the “works of utility” doctrine was the design of boat hulls. The problem here was not only the works of utility doctrine, but also another interesting federal principle known as the “preemption” doctrine.

 

            The Supreme Court elaborated upon the scope of preemption of state laws in a series of cases through the 1970s.‡ In 1989, the Court reaffirmed the doctrine in the case of Bonito Boats, Inc. v. Thunder Craft Boats, Inc. Florida had passed a statute granting special protection to the design of boat hulls (a valuable regional industry), and the plaintiff had attempted, under that statute, to prevent the defendant from using a “direct molding process” to make a knock off of its boat design. However, the Supreme Court struck down the state statute under the preemption [147] doctrine. Florida simply did not have the power to protect what Congress had left outside the scope of federal protection.

 

‡Preemption doctrine, see p. 227.

 

            The boating industry’s response to this setback was to lobby Congress to pass a national statute to protect boat designs. And in 1998, they were finally successful in getting such a proposal included within the Digital Millennium Copyright Act.* The protection only extends for a maximum of ten years, but the established boating industry finally got the protection it sought.

 

*Digital Millennium Copyright Act, see p. 112.

 

Characters

 

Way back in 1930, Judge Learned Hand had suggested that characters, as well as plot, could be copyrighted. Over the past fifty years, however, a lot of ink has been spilled over whether characters may be copyrighted apart from the stories in which they play their parts. The problem arose from a curious case in the Ninth Circuit Court of Appeals, which unfortunately happened to be the circuit court that covered Hollywood, California, and therefore a substantial part of the movie industry.

 

            Dashiell Hammett was a successful mystery writer who created the character Sam Spade in the magazine serial, and then the book, The Maltese Falcon. Hammett and Alfred A. Knopf, the publisher, then sold [149] Warner Bros. the exclusive right to the story in movies, radio, and television. Warner Bros. produced a not bad movie version of the story, and then, in 1941, a remake of the movie starring Humphrey Bogart as Sam Spade. It was an instant hit and an all-time movie classic.

 


[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.

            Later, Hammett and Knopf sold to CBS the exclusive right to produce additional radio versions of the Sam Spade character. Warner Brothers then sued Hammett, Knopf, and CBS, claiming that they owned the exclusive rights to the Sam Spade character under their prior contract with Hammett.

 

            In 1954, the Ninth Circuit Court held that Hammett had not in fact granted Warner Brothers the exclusive right in the character. And then, in case that reasoning weren’t enough, the court went on to state that Hammett could not have done so, because the character was not copyrightable separately from the story. The outcome of the case was the proper one, holding that Dashiell Hammett could not be stopped from producing additional stories using the character that he had created. But the reasoning produced considerable mischief. Characters not protectable? What if it had been Hammett suing someone else? Could the case mean that Hammett had no protectable rights in the Sam Spade character?

 

[148] Characters, of the cartoon variety, who have been held copyrightable by the courts.  (And don’t forget Mickey Mouse, pp. 186 and 198, and PAC-MAN, p. 78.)

[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.”

 [150]    For the most part, no one seemed to believe the Ninth Circuit. Hollywood in fact paid handsomely for rights in characters and for sequel rights. Even if copyright did not protect characters, it was possible that state theories of protection* might have filled the gap in the federal statute. But law review writers for the next several decades had lots of fun trying to reconcile the court case with Hollywood reality.  

*State theories of protection , see p. 222.

 

            To cut a long story short, the courts eventually conceded what everyone else seemed already to have known: that characters are copyrightable even apart from the stories in which they live. The early cases focused upon cartoon characters, where the visual image of the character represented a protectable drawing. After almost five decades, cases have generally come around to protecting literary characters as well.

 


 


[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.

[148] Tarzan, star of over forty movies.

[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.

[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.

 
 

Conclusion

 

As you can see, over the 210-year history of copyright, Congress has been constantly expanding the subject matter of protection. The responses to the new technologies in the late-twentieth century are only the most recent manifestation of this remarkable growth. 

 

Return to Contents

Go to Chapter 7: What Rights Does Copyright Grant?

Permission, Limitations, and Format