The Illustrated Story of Copyright
© 2000 by Edward Samuels
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.
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.
 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.
The [work] is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright. . . .
(Another famous quote from the case, Bleistein v. Donaldson Lithographing Co., can be found on p. 142.)
 Dr. Nobel
 The higher
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.
 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.
 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.
 Other writings.
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.”
 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.
 That persistent copyright notice.
 Insurance against international litigation.
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
 The New York subway system.
 The New York subway system.
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.
 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  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.
 The Gallery of the Louvre, by
Samuel F. B. Morse.
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?
 The Blue Boy.
 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:
It may mean startling, novel or unusual, a marked
departure from the past. . . . [But] “original” in reference to a copyrighted
work means that the particular work “owes its origin” to the “author.” No large
measure of novelty is necessary.
. . . A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the “author” may adopt it as his and copyright it.
 Mezzotint engraving.
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  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.
 Bridgeman’s transparencies for licensing.
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  listed “reproductions of a work of art”; and
the 1976 Act still separately mentions “art reproductions” as within the scope
of “pictorial” works.
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.
 Nobody cared anymore for war.
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  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.
| 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.
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.
 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
useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same . . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.
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.
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.
 George Eastman, as a young photographer.
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  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.
 My first true visualization.
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.
 Unprotected by copyright.
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.
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).
 Harriet Beecher Stowe.
 Uncle Tom’s Cabin.
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
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  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.
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,  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?
 The Great Wallace Shows.
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  involved sufficient creative effort to qualify them for copyright protection. The Supreme Court reversed the lower court decisions, and granted protection.
 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.
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  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
 The Hand of God.
 Uncle Sam.
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.
 Zapruder in the headlines.
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  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* 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.
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.
[Photo of two dancers
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  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.*
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.
 Doing justice under the earlier law.
[Photographs of two homes,
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  doctrine. Florida simply did not have the power to protect what Congress had left outside the scope of federal protection.
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.
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  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.
 The Maltese Falcon.
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?
| 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]
 Spark Plug.
 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.
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.
| Tarzan, star of over forty movies.||
 Hopalong Cassidy.
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.
Go to Chapter 7: What Rights Does Copyright Grant?
Permission, Limitations, and Format