BEING THERE: RE-EXAMINING COPYRIGHT ORIGINALITY FOR PHOTOGRAPHS
AND MOTION PICTURE FILMS AFTER FEIST
Author: Kenneth W. Golish
Dated: October 29, 1991
Copyright 1991 Kenneth W. Golish
Comments may be directed to the Contact Page |
Summary
In light of the recent Supreme Court decision in Feist Publications, Inc. v. Rural
Telephone Service Co., Inc., the author examines the basis for copyrightability of
photographs and film. He argues that if the creativity requirement set forth by the Court
is controlling, photographic works and the like are now subject to scrutiny. This paper
suggests this must be wrong, that the true Constitutional basis for copyright is
uniqueness, a quality not synonymous with creativity.
Being There: Re-examining Copyright Originality for Photographs and Motion
Picture Films After Feist
1. Introduction
In the March of 1991, a young male by the name of Rodney King became famous.
His fame did not come simply from the encounter he had with officers of the Los Angeles
Police Department. Such confrontations are perhaps all too common. These
circumstances were unique because someone, trying out a new video camera, happened
to be there. George Holliday, a plumbing company manager, recorded the event from
his second floor balcony.(1) Later, the entire nation saw again and again, in newscast
after newscast, the disturbing circumstances unfold. The result may eventually affect
several aspects of police work in Los Angeles and elsewhere.
The power of photography and film is not to be doubted. While the picture
camera has been a household item for years, more recently a relatively inexpensive
technology has made film-makers of many.(2) For most users, the video camera is for
home entertainment. Still, it has also become a device for private individuals to
participate in the news-gathering process. Once in a while, one of these photographers
will capture on film or tape an event which will be of interest to a larger audience.
When John Kennedy was shot in Dallas on a Friday afternoon, an 8 mm camera
captured some of the scene. The footage ended up being the subject of a copyright
dispute. See Time Inc. v. Bernard Geis Associates.(3) The events which led to the
decision in Geis were perhaps more common to a period a generation later. The 8 mm
camera in 1963 was not as ordinary an appliance as the video camera is today.(4) Now,
more than ever, amateur recording and picture-taking raise some interesting, if perhaps
only theoretical, copyright issues.(5) These include the fair use doctrine(6) and originality.
The subject of this paper, however, is limited to originality in light of the 1991 decision by
the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc.(7)
Feist answered the question of whether copyright could subsist in the white pages
of a telephone directory. In an opinion written by Justice O'Connor,(8) a unanimous court
determined that such a directory--an alphabetic listing of names, addresses and
telephone numbers--is not original enough to enjoy copyright protection.(9) Because the
Supreme Court rarely deals with copyright issues, most of the caselaw emanates from
the lower federal courts. Some of these cases, even some fairly old ones, now require a
second look. Of course, while Feist answers a question debated by copyright scholars
for a long time, others remain. For photographs and film, what level of originality is
necessary for a work to be copyright?
The Court decided in Feist that originality requires some level of creativity
and that this has always been necessary for copyright protection. Copyright cannot
subsist in the mere ordering of facts unless that ordering is original in itself. To
photographs and film, we may now ask, how does this decision apply? If this kind of
originality is what copyright requires, where is the creativity in a photographer, video or
still, amateur or professional, capturing on film, what is there for others to view? Does
the mere act of the photographer being there entitle him or her to copyright protection for
such a work product?
Photography, the Constitution and Copyright
In 1787, perhaps not even Benjamin Franklin had any notion of the concept
of photography.(10) Copyright--call it the protection of authors and their writings--formerly
the province of the colonies, became a matter for Congress. The Constitution's Article I,
§ 8, cl. 8 (the patent-copyright clause), authorized Congress:
Following this grant of power, Congress has since never purported to enact
copyright legislation pursuant to any other authority. So writings of authors, whatever
may have been its meaning in 1790, came to include such works as photographs and
film.
The Promotion of Arts and Science
One aspect of the patent-copyright clause is the notion that the grant is
based on the necessity of the promoting the useful arts and sciences. Discussing this in
a patent infringement action, Graham v. John Deere Company of Kansas City,(11)
Justice Clark said:
Justice Clark made particular note of the views of Thomas Jefferson, who as
Secretary of State, was one of the two persons first entitled to issue patents.(13)
"Jefferson," wrote Clark, "like other Americans, had an instinctive aversion to
monopolies."(14) Nonetheless, Jefferson did agree that for certain purposes and only for a
limited terms of years, "Monopolies may be allowed to persons for their own productions
in literature, & their own inventions in the arts..."(15)
These principles suggest further that American copyright does not
recognize that authors have any natural rights in their works. In Sony Corp. v.
Universal City Studios, Inc. the Court said:
The Court also found support for this proposition in United States v. Paramount
Pictures:(17)
2. Historical Considerations of Copyright and the Constitution
The Supreme Court in Feist affirmed that originality is a Constitutional
requirement for copyright protection.(19) Ignoring other authority, Justice O'Connor placed
particular reliance on two precedents: the 1879 Trade-Mark Cases(20) and the 1884
decision in Burrow-Giles Lithographic Co. v. Sarony.(21) Both rulings reviewed the
Constitution's grant of copyright power to the federal government.
Congress passed its first copyright bill in 1790.(22) A virtual copy of the
original English legislation found in the 1710 Statute of Anne,(23) the bill recognized
copyright in only maps, charts and books.(24) Numerous later revisions expanded the list
of enumerated works.(25) Photographs first received protection by an act of March 3,
1865.(26)
It took almost a century for the Supreme Court to make a major statement
on the patent-copyright clause. That came in the Trade-Mark Cases. In an opinion
authored by Justice Miller, the Court refused to uphold three criminal convictions for
trade-mark violations under federal law. The legislation creating those offences was
passed together with certain patent and copyright enactments and established a national
trade-mark registration system. Because trade-mark law was a creature of the
Common Law, the Court decided that Congress had no authority to enact the disputed
provisions:
What intellectual labor could be protected was soon answered in an opinion of
the same Justice five years later in Burrow-Giles.
Oscar Wilde: "A picturesque subject indeed!" cried little Sarony.
After the Civil War, New York photographer Napoleon Sarony became
popular for his portraits of people in the theater and arts.(29) A photograph of Oscar
Wilde, taken by Sarony in January 1882,(30) fell into the hands of the defendant
lithographic company. Burrow-Giles reproduced it and sold 85,000 copies.(31) Outraged
by this piracy, Sarony sued and won, but the defendant appealed to the Supreme Court.
In Burrow-Giles Lithographic Co. v. Sarony, the appellant challenged the authority of
Congress to grant copyright in photographs because, so the argument went, a
photograph was not a writing of an author.(32) However, without deciding whether any
photograph could be protected, the picture of Wilde counted as a writing because it was
the "product of plaintiff's intellectual invention."(33) It was so because it comprised the
selection of costume and background materials and lighting, together with posing the
subject.
The 19th Century Debate--Photography As Art
It is helpful to go back to the circuit court decision in Sarony.(34) The
decision quotes extensively from Pouillet's Propriete Litteraire et Artistique.(35) The
document highlights the arguments prevalent in France and no doubt elsewhere
concerning the merit in granting copyright to photographs. Three alternative theories for
copyright protection were proposed. The first suggested that photographs, because
they are produced entirely by technological means, ought not be protected at all:
The second argument proposed that protection ought to be afforded on the
same basis as paintings, that is, without regard to artistic merit. Any photograph still
requires effort, both physical and mental. French naturalist Louis Figuier put it this way:
Thus, the process didn't matter, only the creation of art. So this was said of the
French copyright law of 1793:
The third theory offered in Pouillet suggested leaving to the judgment of
courts the question of the artistic merit of photographs on a case-by-case basis.
However, this theory once offered was quickly rejected. Either grant to all or none.
"Outside of that there is only room for arbitrariness, and, consequently, for danger, as
well for the judge as for the litigant."(39)
It is not clear which view the circuit court accepted. The court only rejected
the first. Similarly, the Supreme Court did not give an opinion broader than necessary.
The argument put to the Court was that photography was a matter of science, not art,
and "simply the manual operation...of transferring to the plate the visible representation
of some existing object, the accuracy of this representation being its highest merit."(40) To
which Justice Miller answered: "This may be true in regard to the ordinary production of
a photograph, and that in such case a copyright is no protection. On the question as
thus stated we decide nothing."(41)
3. The Camera in America
In 1885, Sarony was at the height of his career, well-regarded by his
contemporaries for having made photography a genuine art.(42) If a photograph by N.
Sarony was not entitled to copyright protection, then none other could make that claim.
While Justice Miller may or may not have appreciated Sarony's reputation, no doubt the
Court recognized the impact its decision might have on the profession. The camera was
not a household item. Sarony had much at stake; his studio was filled with costly
equipment and elaborate costumes and fabrics. Other expenses were considerable
too.(43) If anyone could pirate his work with impunity, perhaps Sarony might have been
wise to look for some other calling.
Photography was not the exclusive reserve of professionals.(44) However,
not until George Eastman introduced the Kodak in 1888 was it possible for a person of
modest means to become a photographer.(45) The No. 18 photograph of Oscar Wilde
was therefore nothing out of the ordinary in the sense that not anyone could have shot a
similar picture. Still, while being a photographer was beyond the reach of most people,
the product of this new science was not. Although early photographers, like many
painters, limited their work to private portraiture,(46) the 1850's saw the popularization of
the carte-de-visite.(47) Famous works of art, as well as portraits of celebrities and
working people alike, were produced on hand-sized cards in large quantities and sold at
affordable prices. Given the popularity of the carte, the potential profit for the original
photographer and pirate alike was significant.(48)
Relatively few were employed in photography; fewer produced celebrity
portraits. Yet these works were available for many to enjoy. Perhaps then it is not
difficult to guess at what motivated the Court in giving Sarony, the artist, his due, while
punishing the pirate, Burrow-Giles.
In over 100 years, photography and now film-making have changed. While
it may be difficult to deny copyright to the professional photographer working in the
studio, in the field or the dark room, the same cannot be said of the amateur. If
Burrow-Giles saw a potential division between copyrightable and uncopyrightable
photographs, today's technology-made-simple must make the split even more
pronounced. So what is the answer? What rule that doesn't offend the Constitution
ought to apply?
4. Bleistein Ignored
Perhaps a good answer lies in another Supreme Court decision on the
subject of originality. In the 1903 Bleistein v. Donaldson Lithographing Co,(49) Justice
Holmes found that an illustrated circus advertisement could enjoy copyright. The case is
often remembered for the holding that the commercial character of a work does not
deprive it of copyright.(50) However, the decision also gives some important incite into
originality. It is interesting to contrast Bleistein with Feist; Feist only mentions Bleistein
in passing.(51) While Feist, following the Trade-Mark Cases and Burrow-Giles, speaks
of the need for creativity, however modest, Bleistein only refers to uniqueness. "The
copy," speaking of the poster, says Holmes:
Sharply in contrast to the Trade-Mark Cases, Holmes's view made originality
depend on the author's original contribution, his personal stamp, not on intellectual labor.
For Holmes, making artistic judgments was not a suitable approach because it risked
leaving works of genius unprotected.(53)
Copyright in Motion Pictures and Photographs After the Turn of the
Century
After Bleistein, there appeared little doubt about the copyrightability of
photographs and motion picture films. Congress gave motion pictures copyright
protection in 1912,(54) although motion picture films were probably already protected as
photographs.(55) No cases challenged the copyrightability of films. Still, two cases on
photographs are noteworthy, if perhaps only historically. However, except to suggest
that anyone is free to photograph the same subject matter, they do not attempt to
fashion any rules for considering originality. In Pagano v. Charles Beseler Co.,(56) the
court held a photograph of a simple street scene copyrightable:
This photograph would likely have met any standard of originality. More
interesting is Gross v. Seligman.(58) A photographer, after selling the rights to a
photograph of a nude woman he had taken two years earlier, used the same model in
similar pose for another picture. Although the two poses were not identical, the
similarities were striking enough that the court found infringement.
Jewelers' Circular
In 1922, a Second Circuit case concerned the copyrightability of a directory
of jewelers' trade-marks. Many of the trade-mark illustrations were reproduced
photographically. Jewelers' Circular Pub. Co v. Keystone.,(59) was not the first to
uphold the copyrightability of directories.(60) Neither was it the last for in Leon v. Pacific
Telephone and Telegraph Co.,(61) telephone white pages received protection.
Jewelers' Circular Pub. is interesting for the commentary on photographs by District
Judge Learned Hand:
According to Nimmer,(63) Judge Hand's views have prevailed; any photograph may
claim the requisite originality and qualify for copyright.(64)
The Zapruder Film
One of the cases in which this view persists is Time Inc. v. Bernard Geis
Associates.(65) Abraham Zapruder, president of a Dallas garment firm, happened to be
on a grassy knoll with an 8 mm camera and telephoto lens when President Kennedy was
shot.(66) Zapruder later sold his short film of the assassination to the publishers of Life
magazine.(67) When sketches made using the film were later reproduced in a book on the
assassination, the publishers sued for copyright infringement.
Time Inc. v. Bernard Geis Associates held that no infringement occurred
because the fair use doctrine permitted the copying. However, Judge Wyatt still found
originality in the film. Moreover, he concluded that sketching individual frames was
potentially as culpable as any other method of reproduction.(68)
According to the judge's reading of the then current Copyright Act,
"Congress has expressly made photographs the subject of copyright, without any
limitation."(69) Drawing on the line of cases from Burrow-Giles, Bleistein and Jewelers'
Circular, he formulated what may be described as a per se rule of copyrightability for
photographs and film. In doing so, he quoted Judge Hand in Jewelers' Circular, who
read Bleistein to mean that no photograph "can be unaffected by the personal influence
of the author."(70) Accordingly, photographs enjoyed protection regardless.
5. From Geis to Feist
Jewelers' Circular and Geis were decided under the 1909 Copyright Act.
After years of studies and hearings, Congress passed a new act in 1976.(71) Neither act
made its enumerated categories exclusive. However, where the old act listed works by
medium, the 1976 legislation attempted to classify works according to the nature of their
authorship.(72) Some fourteen classes of works were protected under § 5 of the 1909
Act:(73)
a) Books, including composite and cyclopedic works,
directories, gazetteers, and other compilations.
...
j) Photographs.
...
l) Motion-picture photoplays.
m) Motion pictures other than photoplays.
n)(74) Sound recordings.
In contrast, § 102(a) of the 1976 Act now gives copyright protection to "original
works of authorship fixed in any tangible form." According to the definitions in § 101, a
work may be fixed in any tangible medium which suffices as a copy or in a phonerecord.
Section 102(a) contains seven broad categories of works:
2) musical works, including any accompanying words;
3) dramatic works, including any accompanying music;
4) pantomimes and choreographic works;
5) pictorial, graphic and sculptural works; [defined in § 101
to include photographs;]
6) motion pictures and other audiovisuals works; [defined in
§ 101 to include film and tape;] and
7) sound recordings.
Section 102(b) specifically provides that copyright does not extend to any "idea,
procedure, process, system," etc. According to the accompanying House Report,(75) this
subsection restates the basic dichotomy between expression and idea.(76)
Feist overrules both Jewelers' Circular and Leon. The Court could have
distinguished them because the 1909 Copyright Act named directories as protected
works. The Court could also have distinguished those cases because absent from the
1909 Act was any specific originality requirement. However, Justice O'Connor concluded
otherwise:
Rejecting Sweat of the Brow
In Bleistein, Holmes made the assumption that copyright affords protection
for such works as directories. A fortiori more original works such as illustrations are
entitled to the same guarantees. Thus Feist left open the possibility that the Holmes
view of copyright, being dependant on personality only, is valid. What is not open for
discussion after Feist is that the Copyright Act, passed pursuant to the patent-copyright
clause, covers those works which rely on the "sweat of the brow" theory. According to
William Patry, that doctrine, "seeks to protect the labor and financial investment involved
in compiling information, apart from any particular arrangement of information
compiled."(78) Circuit Judge Rogers expressed his view of the theory in Jewelers'
Circular:
Patry attributes the development of the doctrine to English copyright law.(80)
The advance of the theory occurred first in the early 19th century. Later some United
States courts adopted it. It therefore became acceptable to protect the mere effort in
works such as directories.(81) Perhaps though, this theory had its roots in the first
developments of copyright law. The Statute of Anne was, after all, the result of the
lobbying efforts of book publishers, not those of any authors' guilds.(82) Although the act
for the first time spoke of the rights of authors, it also didn't fail to mention the interests
of proprietors.(83) Perhaps the founders of the Constitution were likewise of the view that
copyright needed to protect those same interests, notwithstanding only authors and not
publishers were named in the clause.(84) Whatever the original framers conceived the
patent-copyright clause to be, the first Congress, in simply adopting the Statute of
Anne, conceivably had the same conception of copyright as the English.
6. Natural Rights and Copyright
Arguably, the better justification for copyright and patent monopolies lies,
not so much in the encouragement of inventive pursuits, but in preventing others from
unduly profiting from those endeavors. If an invention or a work of art has value, then
that value, absent legal or other protections, will enure to the benefit of others. Those
others will be the public or the person who promotes the work; the salesperson, the
publisher, manufacturer or distributor. If we assume that even absent incentives,
creative people will still produce works of value, then rewarding those endeavors
becomes a matter of simple fairness. This is especially so if we expect that the real
benefit of such works will profit the promoters rather than the public.
Patry correctly points out that federal copyright is purely a matter of
statute,(85) unlike some other countries who recognize it as matter of right.(86) This is not to
suggest that natural rights can be ignored in awarding copyright. While arguments for
rejecting a natural rights basis for copyright law may be persuasive, it is perhaps
impossible to separate those rights from the concept of promoting arts and sciences.(87)
In the history of the development of copyright, the two threads are intertwined. Jefferson
too could not divorce one from the other as is unmistakable in this passage from a letter
to Oliver Evans:
Even before Jefferson, the same notion is evident in the preamble of the original
Statute of Anne, whose stated purpose was for "preventing therefore such Practices
[as piracy] for the future, and for the Encouragement of learned Men to compose and
write useful books."(89) Again we see it in the language of Justice Stewart, in Twentieth
Century Music Corp. v. Aiken:(90)
If the goal of promoting science and arts is too obscure a concept, it is
perhaps simpler to focus on the law's immediate effect. It is not wrong then to consider
natural rights issues when shaping the course of copyright. The limitation is that natural
rights cannot be claimed for facts or ideas. The framers of the Constitution simply never
"intended to confer upon one who might happen to be the first to a historic event the
exclusive right for any period to spread the knowledge of it."(92) So Justice O'Connor
remarked in Harper & Row Publishers v. Nation Enterprises,(93) that copyright, "is
intended to increase and not to impede the harvest of knowledge." None can claim any
natural rights to facts or ideas, but expression may be protected by copyright.
Congressional Implementation of the Patent-Copyright Clause
Of course critics will argue that the current copyright law fails to meet its
own stated objectives, that in several respects, it does not champion the interests of
authors, but promotes the prosperity of publishers and promoters.(94) It is said too that
copyright often becomes an instrument that impedes the flow of information. Support of
this criticism may be found in the dissent in Harper & Row Publishers v. Nation
Enterprises. While the majority held that copying some 300 words of an unpublished
manuscript was infringement and not fair use,(95) Justice Brennan urged that the fair use
doctrine must protect such copying. He argued that both the First Amendment and the
patent-copyright clause dictated such a result, otherwise the majority's decision would
serve as an impediment to the flow of information.
Justice Brennan did not propose to scrap copyright law entirely, only to
give a broader reading to the fair use doctrine in that particular case. However, the
response to such criticisms of current law begins by acknowledging that achieving the
objectives of copyright law is not a simple task. It is said too that democracy is a bad
form of government, but that all the others are so much worse. Similarly, a system for
granting monopoly rights can never be perfect. The law can only act as a carrot and not
a stick. Implementing copyright law may involve compromise such that it may not always
be apparent that the purposes of copyright protection are served. It is left for Congress
to decide how to exercise its mandate.
Based on principles first announced by Justice Marshall in McCulloch v.
Maryland,(96) Congress is free to implement the powers granted by the Constitution as
long as the ends are legitimate and the means appropriate.(97) Although this deference
has most often applied to the commerce clause, there is no reason to believe it is not
applicable here. This view finds support in two passages from decisions in the Supreme
Court: Firstly, there is this statement in Kalem Co v. Harper Brothers:(98)
And in Sony Corp. v. Universal City Studios, Inc. the Court said:
Congress has taken the mandate of the patent-copyright clause
seriously.(101) For instance, to encourage the publication of works, the 1976 Act
eliminating all claims to common law copyright.(102) Congress instead made copyright
attach at the time of fixation and expire 50 years after the author's death.(103) At the same
time, Congress has also tried to place the interests of authors first.(104)
7. What Congress Can Do
If Congress has considerable latitude in implementing the patent-copyright
clause, it can restrict protectable works as it chooses.(105) However, this does not mean
that Congress cannot establish a prophylactic rule for at least some kinds of works.
Arguably, Congress intended such a policy for photographs under the 1909 act. Justice
O'Connor says however, that originality was even a requirement under the old act.(106) It
is therefore difficult to read into either the current act or the old, any Congressional intent
to make a per se rule for photographs and motion picture films. Still, this may not
foreclose the possibility that such a rule exists. A passage in the 1976 House Report
suggests Congress left the judgment of originality to the judiciary:
Looking For a Per Se Rule
The question then remains how to interpret the requirement of originality for
photographs, narrowly or otherwise? While Feist may be the latest case on originality, it
is not about photographs. Yet Justice O'Connor's opinion intimates that the Court would
reject a per se rule for photographs. The Court says that original means creative:
Justice Brandeis, in his dissenting opinion in International News Service v.
Associated Press,(109) also suggests an approach requiring some scrutiny: "The mere
record of isolated happenings, whether in words or by photographs not involving artistic
skill, are denied protection."(110)
Another conception of this stricter standard is represented by Justice Douglas'
dissent in Lee v. Runge,(111) He argues it is wrong to treat copyright on a different
footing than patents. The authority of Congress to legislate in both areas is the same,
yet patents, he says, require novelty and copyrights do not. "An author's 'Writing' or an
inventors 'Discovery' can, in the constitutional sense, only extend to that which is his
own,"(112) says Douglas. Still, what an author may claim as his own remains quite broad:
The standard proposed by these opinions and clearly implied in Feist would
result in the rejection of copyright protection for many photographs. Is this correct?
Does the Constitution require a work to meet some critical measure to qualify as
original?
Taking pictures using a still camera or camcorder may only be a technological
rendering of facts, not worthy of recognition. With most photographs, selections of
place, time and equipment are not particularly creative. For instance, the photographer
who recorded the Rodney King incident happened to have a video camera. The camera
was not selected for the occasion. Likewise, the balcony location was not a matter of
choice, but the only one immediately available.(114) Finally, while the recording involved
some camera movement--panning back and forth and zooming in and out--none of these
actions was particularly artistic. This leaves open the prospect that even worthy pictures
are subject to scrutiny because it is always possible to argue they are the product of
chance.(115)
The Zapruder film would not survive such scrutiny. In Geis, the judge, although
accepting Learned Hand's pronouncements on originality for photographs, still concluded
Zapruder's film had many elements of creativity:
Such claims of inventiveness appear highly suspect. None of the selections
seems more creative than the decision to list names in alphabetic order. For example,
even if it had been selected for the occasion, what difference does the use of color film
make? If such a selection is important, would it not follow that the type of paper used for
a writing is an ingredient of its originality? Even if these arguments for creativity are
tenable, surely there must be some circumstances where none exist at all; for instance,
where a photograph is shot by accident.
8. The Copy Cases
Is taking a photograph or shooting a film just a form of copying facts? The
answer night be found in a line of cases concerning originality in copying from other
original works. This line starts in 1951 with Alfred Bell & Co. v. Catalda Fine Arts,
Inc.,"(117) where Second Circuit Justice Frank did not read the Constitution to require
novelty for copyrights, although patents did have to meet that standard. Original meant
only not copied. The court held that lithographic mezzotint reproductions of old masters
were entitled to copyright. Anyone could copy the originals, but not the mezzotints."(118)
Another case with an interesting twist is Alva Studios, inc- v. Winniger."(119)
There, the court found originality in an exact scale-down reproduction of Rodin's 'Hand of
God. The precise nature of the copying made the copy a genuine work."(120) The case is
of course troublesome, considering the exactness of the copying involved. Obviously,
Alfred Bell can be distinguished because there was an inherent difference between the
copy and the original. However, in Alva the copy remained distinct only in size."(121)
Noteworthy too are cases where originality was not found. One decision is that of
the Second Circuit in L. Ratlin & Son, Inc. v. Snyder.(122) It involved a Customs Service
recordation of copyright in an Uncle Sam mechanical bank. Judge Oakes, in his majority
opinion, called the disputed item a knock-off."(123) Perhaps that simple categorization
dictated the fate of the claim. Judge Oakes then avoided any conflict with Alva by
distinguishing it: The work in Alva was entitled to copyright because of the social benefit
derived from the precise, artistic reproduction of a statue not readily accessible to the
public."(124)
In the Seventh Circuit, Gracen v. Bradford Exchange,(125) in discussing originality
in works copied from other works, took an approach similar to Batlin. The plaintiff
Gracen participated in the defendant's competition in which she submitted a painting of
Judy Garland's Dorothy in the Wizard of Oz. After Gracen refused an offer for her
work, the defendant simply commissioned another artist to copy Gracen's painting.
Judge Posner rejected her claim to copyright. To be original, there had to be sufficient
variation between the derivative work, Gracen's, and the underlying work, the movie.
The court found the difference insignificant and dismissed the action.
Are these 'copying copy' cases applicable to finding the original elements of
photography and film? They happen, however, to be limited to situations involving
copying from the public domain or making derivative works. Judge Oakes hints at this in
this warning about copying from the public domain:
(126)
More to the point is Gracen, in which Judge Posner limits his remarks to
derivative works:
Choosing a Theory for Copyright Protection
There is a difference between the view of copyright which requires original to
mean creative and the view which requires works to be unique. The latter is suggested
by Holmes in Bleistein and Hand in Jewelers' Circular, the former by Brandeis in
International News and Douglas in Lee v. Runge and perhaps too by O'Connor in
Feist. Which concept is then more consistent with the patent-copyright clause? Original,
in the dictionary, connotes only that which is first. Thus, as was said in Alfred Bell,
original simply means not copied. Creativity, on the other hand, suggests imaginative,
artistic, or intellectual effort, even if the effort, as the courts have counselled, is
mediocre. There lies the problem because creativity means something that is subject to
judgment and taste. For this reason, judges have avoided such questions by purporting
to make the standard of creativity low. Therein lies a paradox: If the patent-copyriqht
clause indeed compels creativity, having a low standard is pointless. However, the
clause doesn't speak of either originality or creativity; it calls for the promotion of arts
and sciences.(128) The patent-copyright clause was said to be both a grant of power and a
limitation. The grant is in some ways easy to understand. Comprehending the limitation
may prove illusive if we expect the proscription only permits enactments which in all
instances actually promote arts and science.
It is better to think of the mandate in broad terms, with Congress left the task of
deciding how to implement its authority. Understanding what constraints are contained in
the patent-copyright clause, simply requires remembering the framers' aversion to
monopolies. The clause permits monopolies for limited times, provided those monopolies
do not unfairly restrict the rights of others. Accomplishing this does not necessitate
judges and juries deciding copyright on the basis of artistic merit.(129) Does this then give
Congress has an expansive authority to grant monopolies? In fact, it does not when the
authority is limited to unique creations. The concern with preventing abuse of monopolies
vanishes if the government-conferred privilege of copyright is granted only to those works
which are singular and unique. To allow a limited monopoly for a creation, which is one's
own,(130)
which no one else could independently produce, cannot therefore offend the
Constitution.
A Unified Theory for Patents and Copyrights
Supposedly, the requirements of copyright law differ from those of patent law.
Patents must be novel and non-obvious.(131) Novelty, it is said, is not essential for
copyright. Thus, compared to copyright law, patent law appears better positioned to
reward talent. If that appears incompatible with the notion of promoting arts and
sciences, there is, however, a good reason for the difference. While in scientific fields,
talent and intelligence are most often needed to come up with original discoveries, the
same does not hold for artistic creations. It is more probable for someone to hit upon an
original creation if it is less a matter of science than art.(132) No doubt, for instance, more
than one person invented the wheel. If Euclid hadn't found a relationship between the
sum of the squares of a right-angle triangle, some one else would have. The same can
be said for countless other scientific discoveries. As for ideas, one would be hard
pressed to assert that, if all the esteemed and published thinkers from Plato to Marshall
McLuhan had never lived, others would not be there to at least partially fill that void.
However, if the great artists of history had never lived, the drama and fiction of
Shakespeare and Dickens, the music of Mozart, Beethoven and Gershwin, and the art of
Rembrandt and Van Gogh would never have been created.
Under the patent-copyright clause the goals of both are the same and reduced to
their simplest form: to promote arts and sciences by offering an incentive only to those
who will bring forth that which is unique. Patent law rejects the obvious because to do
otherwise would permit monopolies to some, unfairly to the exclusion of others. For the
same reason, copyright will not protect simple ideas and systems.
9. Protection Without Discrimination
The patent-copyright clause simply empowers Congress to grant monopolies to
works merely on the basis of uniqueness.(133) How the work is created is unimportant. If
the work is unique, that is sufficient for protection. The marketplace becomes the judge
of artistic merit, not the courts.
Copyright protection, I suggest, exists without regard to the manner or
talent involved in the creation of any particular work. Like patents, copyrighted works,
despite claims to the contrary, do indeed have to be novel. Whether a work's origin is
attributed to design or otherwise,(134) it still has the same protection. The rule applies
whether the artist is an amateur or professional or whether the author's motive is
commercial or otherwise. The reasons for avoiding such distinctions include the difficulty
in drawing lines based on those differences and the absence of any compelling reason
for doing so. Such issues do not then figure into questions of originality. Thus, 200
pages of letters end up with the same protection as a 200-page novel. Likewise, the
amateur family portrait becomes no less original when compared to the professional
photograph. When Congress has not chosen to distinguish works intended for private
use and those targeted for public consumption, the courts don't need to be concerned
about such distinctions either. Judges and juries are thus left with the simpler task of
determining an objective issue, uniqueness or originality. They need not pose subjective
questions like whether a work has artistic merit or social value. Nor need they determine
other illusive matters such as the precise process, chance or otherwise, which created a
particular work.(135)
Although natural rights are not to be ignored, considerations of artistic merit
should be. Curiously, from this perspective, the patent-copyright clause might give
Congress a broader mandate than it might otherwise enjoy under a natural rights notion
of copyright.
10. The Idea\Expression Dichotomy
If Feist stands for the proposition that sustaining a copyright requires the
claimant to prove even some creativity, the premise must be wrong.(136) Holmes put it
better when he warned about the dangers of making aesthetic judgments of artistic
works and said copyright depended on personality only. This is not to say that Feist
was incorrectly decided, only that the Court was mistaken in asserting originality requires
creativity, however meager. Because the issue presented to the Court concerned only
the 'sweat of the brow' doctrine, Justice O'Connor's comments about creativity must
simply be remembered as not controlling.
Despite the narrowness of the holding, the significance of Feist goes
beyond simply rejecting 'sweat of the brow.' Abstractions such as ideas, theories,
scientific discoveries and the like are similar to facts. All are essentially accessible
independently and individually. What Feist says about facts is equally applicable to ideas
or any other abstraction one chooses. The decision is then consistent with the
formulation of originality that is the essence of the inquiry in most infringement cases:
Copying is permissible, even to save labor, if the later work could conceivably be
created without copying from the former.
The dichotomy often spoken of does not distinguish between the two
abstractions of idea and expression on the basis of differences in their character, but, in
the context of copying,(137) purely on the basis of quantity taken.(138) The prohibition is then
simply from copying too much. When comparing a second work to one supposedly
copied, the copying must not be so great that it would defy probability to suggest the
second could be created without the first.
Learned Hand may have understood the dichotomy as involving a line not to
be crossed. In Nichols v. Universal Pictures Corporation,(139) we have Hand's oft-quoted abstraction test:
That Hand rejected the portion-taking analogy, does not mean he regarded
the essence of the idea/expression dichotomy as qualitative and not quantitative.(141) The
analogy was not a good one because exact copying of even a small portion of a work will
always be more offensive than a much less precise copying of the whole. A balance is
required, but this balance only goes to illustrate that indeed the dichotomy is concerned
with matters of degree not kind.
From even the most original work, one may be free to take something. As
Learned Hand said in Nichols v. Universal Pictures Corporation,(142) "the question is
whether the part so taken is 'substantial,' and therefore not a 'fair use'(143) of the
copyrighted work." On the other hand, even a modest work may have some protection.
For instance, if in Feist(144) the defendant had simply photocopied(145) the plaintiff's white
pages portion, a better argument might be made for an infringement claim.
11. The Dichotomy and the Infringement Action
Infringement cases always concern the level of permissible copying. Other than
formality questions, the basic issue in those cases is whether there has been illicit
copying. Two forms of defence follow, either an attack on the originality of the copied
work--as in Feist--or a denial of copying. In the latter situation, the cases require posing
two questions.(146) First, a court must ask, has the alleged infringer had access to the
original author's work? Often this is not in issue anyway. This leads to the second
query: is there substantial similarity in the works? The basis for this two-step inquiry
arises from the belief, which perhaps is not so self-evident, that if two people
independently create the same work, each is entitled to copyright. In support of this
principle, authorities often quote Learned Hand in Sheldon v. Metro-Goldwyn Pictures
Corporation, where he says:
Certainly magic would be the element creating such a coincidence. Hand only
made the analogy to illustrate the notion that a single idea conceived earlier could not
defeat copyright in a later work incorporating the same thought.(148)
The two-step inquiry is unnecessary because copyright does not prohibit all
copying. If some copying is permissible, the only judicial issue left is whether the copying
has been excessive. On the one hand, if a court were to find that a work, absent direct
evidence of access, could not have been created without copying from another, then
copying is presumed anyway. Moreover, with such striking similarity as the court may
find, a conclusion of infringement naturally follows.(149) On the other hand, when there is
some similarity, copying is permitted if what is copied is limited to the idea component of
the dichotomy.
If Feist permits copying, then it is redundant to bother with the substantial
similarity prong of the test to prove it. Although courts only speak of substantial similarity
in reference to the copyrightable elements,(150) distinctions are usually blurred. Works
may often be substantially similar because they rely largely on the same prior art(151) or
are based on the same subject.(152) However, significant resemblances will not defeat an
independent claim of copyright. On the other hand, some works will not be similar
because they lack such common sources. Yet it may be that one work impermissibly
plagiarized another. In other words, in one circumstance, a relatively small taking may
be prohibited, but another instance would require a large appropriation to constitute
infringement.
The essence of copyright is distinctiveness. Assessing copyright originality
is then properly understood to involve judgments on probability, the probability that one
work could or could not have been created without the assistance of the other. It is
therefore the particularly unique combination of ideas or elements that will account for
originality in a given work.
12. Property in the Proof
Although exceptions will occur, photographs and motion picture films get
copyright without scrutiny.(153) Still, the copyright will commonly have its limits. As was
said in Pouillet's Propriete Litteraire et Artistique:
These rights have an interesting parallel in copyright protection for sound
recordings. After Congress became concerned over piracy of commercial records,
sound recordings(155) received independent recognition in 1971.(156) However, the
protection, unchanged to date, provides fewer rights than those given to owners of other
works. Section 114(a) of the Copyright Act, excludes a performance right for sound
recordings. Section 114(b) goes further and provides only limited protection from
copying:
The exclusive right ... in a sound recording
under clause (1) of section 106 [reproduction] is
limited to the right to duplicate the sound
recording in the form of phonerecords, or of
copies of motion pictures and other audiovisual
works, that directly or indirectly recapture the
actual sounds fixed in the recording...The
exclusive rights [to reproduce and prepare
derivative works] do not extend to making or
duplication of another sound recording that
consists entirely of an independent fixation of
other sounds, even though such sounds imitate
or simulate those in the copyrighted sound
recording...(157)
Although Congress appears to have left the judgment of originality to the courts
generally, there is something very telling about this enactment. By this section, Congress
arguably removed any of the actual performers' rights in sound recordings, while
acknowledging, as was said for photographs, 'the property in the proof.'(158) If Congress
recognized authorship in the product of technology for sound recordings, the same rule
must with equal or greater force apply to photographs and film.
What makes the proof so unique? The reasons are the same as they are
for even the most simplest creations, handwriting, scribbling, or perhaps the exact words
used for a short poem. Such works are unique because science and mathematics
dictate they will be. The same rules of probability must apply to these works as apply to
fingerprints, for instance.(159) The proof is unique because we know its creation will result
in a product as distinctive as a fingerprint.
A copyrighted photograph or film will always enjoy protection from
reproduction in the same medium, from technological copying. In other situations, certain
types of copying are always permitted. Anyone is therefore free to photograph the same
subject.(160) Beyond this, as Nimmer says, it is critical to appreciate the difference
between the copyrightable elements of the picture and those of the underlying subject
matter.(161) Nimmer makes the distinction for film, but it applies equally to still
photography.
The video or still photographer will at times shoot a scene without
exercising any control over the subject. Examples of this abound in news photography,
but also in nature pictures and the like. In other situations, the work will involve some
further creative process in the arrangement of the subjects and the development of the
final product. Examples of this include portraiture and motion pictures. Camera
positioning and movement,(162) editing and film processing will all contribute to an original
work. When the photographer is more than a passive observer, the copyrightable
elements of the work will also include the positions, poses and placements of persons
and objects.(163) In film, the elements may include the script,(164) as well as any dramatic
performances.(165)
When the camera captures what the photographer does not control,
copyright protection is limited. Long ago the Supreme Court commented that an official
court reporter could not claim authorship in the opinions of the Court.(166) Similarly, a
photographer cannot claim authorship in the entirety of his work when he does not control
the placement or action of its subjects. After one person photographs a subject, others
are free to go to the same location or use similar materials and take photographs in at
least a similar manner.(167) For example, nothing prevents another film-maker from
shooting a re-enactment of the Rodney King incident.
Does this mean others may freely imitate such a work? Perhaps this is
where a distinction may lie between photographs and film. Filmed subjects may not only
involve the subject, but the movement of the camera. Even without the benefit of editing,
that movement will have its own originality.(168) For film, imitation may be limited to a
single frame or frames, otherwise the incident may not be filmed in a way which would
too closely resemble the original.
Copyright, as I have suggested, does not prohibit all copying, only
excessive copying. Some photographs may be so basic or so lacking in independent
elements of authorship as to be only protectable against reproduction in the same
medium. The mechanical copy will certainly have its uniqueness, but the basic image
may not. As an example, a painter might use another's sunset photograph as a model
from which to create his own vision of the setting sun.(169) On the other hand, sketching
frames from the Zapruder film may be prohibited because of the uniqueness of the
original in place and time.(170) Even if one sketch is permissible, not necessarily so a
whole sequence imitating a film's audiovisual effect.(171)
Conclusions
Congress has not put photographs on any different plane than other works.
Contrary to the unfortunate language set forth in Feist, works receive copyright based on
their uniqueness, regardless of how they are produced. It is this originality which, as
was said in Feist, is Constitutionally mandated. The monopoly of copyright cannot
prevent others from using that which is not unique, that which does not have the personal
stamp of the author. Copying from photographs, is no different from copying from other
works. The copying is permissible if the line between taking too much and taking just
enough is not crossed. It just happens that the line will always be crossed when a
photograph or film is reproduced in the same medium. If only simple answers could
follow from the simplicity of these rules.
To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.
The clause is both a grant of power and a limitation. This
qualified authority, unlike the power often exercised in the
sixteenth and seventeenth centuries by the English Crown, is
limited to the promotion of the "useful arts."(12)
The monopoly privileges that Congress may authorize are
neither unlimited nor primarily designed to provide a special
private benefit. Rather, the limited grant is a means by which
an important public purpose may be achieved. It is intended
to motivate the creative activity of authors and inventors by
the provision of a special reward, and to allow the public
access to the products of their genius after the limited period
of exclusive control has expired.(16)
The copyright law, like the patent statute, makes reward to
the owner a secondary consideration. In Fox Film Corp. v.
Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as
follows respecting the copyright monopoly granted by
Congress, 'The sole interest of the United States and the
primary object in conferring the monopoly lie in the general
benefits derived by the public from the labors of authors.' It
is said that reward to the author or artist serves to induce
release to the public of the products of his creative genius.(18)
The ordinary trade-mark has no necessary relation to
invention or discovery. The trade-mark recognized by the
common law is generally the growth of a considerable period
of use, rather than sudden invention. It is often the result of
accident rather than design, and when under the Act of
Congress it is sought to establish it by registration, neither
originality, invention, discovery, science or art is in any way
essential to the right conferred by that Act...The writings
which are to be protected are the fruits of intellectual labor,
embodied in the form of books, prints, engravings and the
like.(27)
On the one hand, the painter continues his work; his
intelligence directs his hand; he corrects his first thought, he
modifies it, he perfects it, and up to the last moment he
impresses on it the stamp of his own personality. On the
other hand, the photographer erects his apparatus, he
thenceforth remains a complete stranger to what is taking
place; light does its work: a splendid but independent agent
has accomplished all. The man may disappear at the
beginning of the operation; it will, nevertheless, be performed
without the assistance of his intelligence or his mind; his
personality will be lacking to the product at the only time in
which, according to the spirit of the law, this personality could
afford him any protection.(36)
Until now, the artist has had the brush, the pencil and the
burin, now, in addition, he has the photographic lens. The
lens is an instrument like the pencil and the brush, and
photography is a process like engraving and drawing, for
what makes an artist is not the process but the feeling.(37)
Thus it has been adjudged, in this sense, that photographic
images are pictures. Whatever may be their aesthetic
value,--however great may have been the part played by the
agents pressed into his service by the operator,--it is certain
that there yet remains to him an important part: he
determines the aspect under which the subject of the picture
is to be presented to the luminous ray; he disposes the lines,
and gives evidence, in a certain measure, of taste, of
discernment, of skill. The work which, without the exercise of
these various faculties, would not be brought forth, may thus
be justly called a work of the mind, and protected on this
ground by the law...(38)
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 something irreducible, which is one man's alone.(52)
It undoubtedly requires originality to determine when to take
the photograph, so as to bring out the proper setting...with
adjunctive features of light, shade, position, etc. The
photograph in question is admirable. The photographer
caught the men and women in not merely lifelike, but artistic,
positions...(57)
Burrow-Giles...left open an intimation that some photographs
might not be protected...I think that, even as to these,
Bleistein...rules, because no photograph however simple, can
be unaffected by the personal influence of the author, and no
two will be absolutely alike. Moreover, this all seems to me
quite beside the point, because under § 5(j) photographs are
protected, without regard to the degree of "personality" which
enters into them. At least there has been no case since 1909
in which that has been held to be a condition. The suggestion
that the Constitution might not include all photographs seems
to me overstrained.(62)
1) literary works;
The 1909 Act embodied the originality requirement, but not as
clearly as it might have...Section 4 stated that copyright was
available to "all the writings of an author." 35 Stat.
1076...Section 3 was similarly ambiguous. It stated the
copyright in a work protected only the copyrightable
component parts of the work." It thus stated an important
principle, but failed to identify the specific characteristic--originality--that determined which component parts of a work
were copyrightable and which were not.(77)
The man who goes through the streets of a town and puts
down the names of each of the inhabitants, with their
occupations and their street number, acquires material of
which he is the author. He produces by his labor a
meritorious composition, in which he may obtain a copyright,
and thus obtain the exclusive right of multiplying copies of his
work.(79)
Certainly an inventor ought to be allowed a right to the benefit
of his invention for some certain time...Nobody wishes more
than I do that ingenuity should receive a liberal
encouragement.(88)
Creative work is to be encouraged and rewarded, but private
motivation must ultimately serve the cause of promoting
broad public availability of literature, music, and the other
arts. The immediate effect of our copyright law is to secure
a fair return for an 'author's' creative labor. But the ultimate
aim is, by this incentive, to stimulate artistic creativity for the
general public good.(91)
It is suggested that to extend the copyright to a case like this
is to extend it to the ideas, as distinguished from the words in
which those ideas are clothed. But there is no attempt to
make a monopoly of the ideas expressed. The law confines
itself to a particular, cognate, and well-known form of
reproduction. If to that extent a grant of monopoly is thought
a proper way to secure the right to the writings, this court
cannot say that Congress was wrong.(99)
Sound policy, as well as history, supports our consistent
deference to Congress when major technological innovations
alter the market for copyrighted materials. Congress has the
constitutional authority and the institutional ability to
accommodate fully the varied permutations of competing
interests that are inevitably implicated by such new
technology.(100)
The phrase "original works of authorship," which is purposely
left undefined, is intended to incorporate without change the
standard of originality established by the courts under the
present copyright statute. The standard does not include the
requirements of novelty ingenuity, or aesthetic merit, and
there is no intention to enlarge the standard of copyright
protection to require them.(107)
As mentioned, originality is not a stringent standard; it does not require that
facts be presented in an innovative or surprising way. It is equally true
however, that the selection of facts cannot be so mechanical or routine as
to require no creativity whatsoever. The standard of originality is low, but it
does exist...and anyone who claims infringement must prove "the existence
of ...intellectual production, of thought, and conception." Burrow-Giles,
supra, 111 U.S., at 59-60, 4 S.Ct., at 281-282.(108)
If Johann Spies' Historia von Dr. Johann Fausten,
Christopher Marlowe's The Tragical History of Dr.
Faustus, Goethe's Faust and all the other countless
operatic, symphonic, dramatic and literary versions of the
Faustian legend were published today, copyright protection
could well be extended to all. "[A] copyright gives no
exclusive right to the art disclosed; protection is given only to
the expression of the idea--not the idea itself." Mazer v.
Stein, 347 U.S., at 217, 74 S.Ct., at 470. The manner in
which the words or musical notes are combined to recount
the Faustian legend could well satisfy the constitutional
requirement of novelty even though the broad ideas they
describe may be part of the public domain.(113)
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.(116)
To extend copyrightability to minuscule variations would
simply put a weapon for harassment in the hands of
mischievous copiers intent on appropriating and monopolizing
public domain works.
We are speaking, however, only of the requirement of
originality in derivative works. If a painter paints from life, no
court is going to hold that his painting is not copyrightable
because it is an exact photographic likeness. If that were the
rule photographs could not be copyrighted--the photographs
of Judy Garland in "The Wizard of Oz," for example--but of
course they can be, 1 Nimmer on Copyright § 2.08[E)
(1982). The requirement of originality is significant chiefly in
connection with derivative works, where if interpreted too
liberally it would paradoxically inhibit rather than promote the
creation of such works by giving the first creator a
considerable power to interfere with the creation of
subsequent derivative works from the same underlying
work.(127)
Upon any work, and especially upon a play, a
great number of patterns of increasing
generality will fit equally well, as more and more
of the incident is left out. The last may perhaps
be no more than the most general statement of
what the play is about, and at times might
consist only of its title; but there is a point in this
series of abstractions where they are no longer
protected, since otherwise the playwright could
prevent the use of his 'ideas,' to which, apart
from their expression, his property is never
extended. Holmes v. Hurst, 174 U.S. 82, 86, 19
S.Ct. 606, 43 L.Ed. 904; Guthrie v. Curlett, 36
F.(2d) 694 (C.C.A. 2). Nobody has ever been
able to fix that boundary, and nobody ever can.
In some cases the question has been treated
as though it were analogous to lifting a portion
out of the copyrighted work (Rees v. Melville,
MacGillivray's Copyright Cases (1911-1916),
168); but the analogy is not a good one,
because, though the skeleton is a part of the
body, it pervades and supports the whole. In
such cases we are rather concerned with the
line between expression and what is
expressed.(140)
[I]f 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.(147)
It is almost useless to add--so evident is it--that
our theory has the advantage of respecting the
rights of each person; for if the photographer
has the property in his proof, his property does
not go beyond that, and everybody is none the
less free to reproduce the same subject. Why
not leave to him the property in the work which
he has conceived and executed? Why
encourage the piracy of his rivals?(154)
1. Los Angeles Times, March 7, 1991. Holliday did nothing with his March 3rd tape for
a day and half. He then took it to his favorite station, KTLA and upon a handshake
received $500.00 for his only copy. KTLA, because of an affiliation agreement, fed it to
CNN requesting a one-day local exclusive. However, KNBC, L.A.'s part of the NBC
network, got the tape through a Phoenix station affiliated to both CNN and NBC. After
that, an upset KTLA news director made the tape available to other local stations free.
KNBC also gave Holliday $500.00. Los Angeles Times, March 9, 1991.
On May 15, 1991, Holliday registered his copyright. His lawyer called KTLA's
actions irresponsible claiming an understanding the station could use the tape locally
only. The news director disputed that assertion and also questioned Holliday's copyright
claim: "We copyright our newscast every night. One could argue the point that we
copyrighted the goddamn thing." Washington Post, June 4, 1991.
Later, Holliday reportedly received $1500.00 from female rappers 'Bytches with
Problems' for the use of ten seconds of the tape in a music video. Chicago Tribune,
May 17, 1991.
Holliday's lawyer was reported to have sent letters to the estimated 900 stations who carried the film. Each letter, under the name of the George Holliday Foundation, demanded $7,500 for the use of the tape. Washington Post, June 4, 1991.
2. There are at least 12 million such cameras in U.S. households.
3. 293 F.Supp. 130 (S.D.N.Y. 1968).
4. Another famous amateur film is the one shot by George Willens, a Detroit printing company owner. On May 6, 1937, he filmed the explosion of the Hindenberg. "I thought them about the safest way to travel," he said, "but after this I'll never get in one again." See discussion of other famous amateur films in the San Francisco Chronicle, April 3, 1991.
5. In most instances of amateur photography, the work will have no commercial value and no one will have an interest in protecting it.
6. Fair use only comes into issue once copyright is established. For newsworthy
subjects however, the fair use doctrine will often permit the use of works which would
otherwise be protected by copyright. See the general provisions of fair use under 17
U.S.C. § 107. While the originality requirement and the fair use doctrine are both shaped
in part by Constitutional free speech considerations, the two are distinct. See the
treatment of copyright and the First Amendment in M. Nimmer, "Does Copyright Abridge
the First Amendment Guarantee of Free Speech," 17 UCLA L.Rev. 1180 (1970).
Nimmer elsewhere has this comment about the doctrine, giving the Mai Lai photographs as an example: "No amount of words describing an "idea" of the massacre could ever substitute for the public's insight gained through the photographs. The photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode. It would be intolerable if the public's comprehension of the full meaning of My Lai could be censored by the copyright owner of the photographs." Nimmer § 1.10[C], 1-83.
7. ___U.S.___, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).
8. Seven justices joined in the opinion. Justice Blackmun simply concurred in the judgment.
9. Actual copying amounted to the use of 1,309 of 46,878 listings. ___U.S.___,___, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358.
10. Most authorities credit Louis Daguerre as the father of photography. His daguerreotype process, which he announced in Paris in 1839, became the prominent method for creating photographs for the next twenty years. However, Daguerre was not alone in the search for a process that would fix optical images onto photosensitive surfaces. W. H. Fox Talbot, an Englishman, independently developed a photographic process involving a negative-positive technique. However, neither Talbot or Daguerre was the first to create a photograph. Daguerre, who one author described as a showman, learned the basics of the science of photography from Joseph Nièpce. See G. McDonald, Camera (New York, 1980), 10. Nièpce's "View of the Courtyard at Gras" was taken in 1826. The picture took several hours to produce. The exposure was affected by the movement of shadows from one side of the picture to the other. Still even Nièpce relied on advances in the sciences of optics and chemistry going back centuries. They included the development of the camera obscura (dark room), used by artists to trace images created by ground glass. The first account of the 'dark room' dates back to 1558. See F. Rinhart & M. Rinhart, The American Daguerreotype (Athens, Ga., 1981), 3-4. As for the chemistry, see for instance Thomas Wedgewood and Sir Humphrey Davy "An Account of a Method of Copying Paintings Upon Glass, and of Making Profiles, by the Agency of Light Upon Nitrate of Silver," 1802, reprinted in B. Newhall, ed., Photography: Essays and Images, (New York, 1980) 15.
11. 383 U.S. 1 (1966).
12. Id. at 5.
13. Id. at 7.
14. Id.
15. Id. at 9; quoting from V Writings of Thomas Jefferson at 113 (Ford ed. 1895), being part of a proposed draft of the Bill of Rights in a letter to Madison in August 1989.
16. 464 U.S. 417, 429 (1984).
17. 334 U.S. 131, 158 (1948).
18. Id.
19. ___U.S.___,___, 111 S.Ct. 1282, 1288, 113 L.Ed.2d 358.
20. 100 U.S. 82.
21. 111 U.S. 53.
22. Act of May 31, 1990, 1 Stat. 124.
23. 8 Anne c. 19; Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 Com. & Law 37, 44 n. 23, (Dec. 1990).
24. 1 Stat. 124, § 1. See Burrow-Giles Lithographic Co. v. Sarony, 4 S.Ct. 279, 280. (1884). See also Wheaton and Donaldson v. Peters and Grigg, 33 U.S. 591, 8 Pet. 591, 8 L.Ed. 1055 (1834).
25. "Between 1789 and 1904, there were in all some twenty-five laws dealing with copyrights. Solberg, Copyright in Congress (1905), 89-93." Mazer v. Stein, 347 U.S. 201, 209, n. 13. As stated in this opinion, after the first enumeration of protected works, "later, designing, engraving and etching were included; [2. Stat. 171.] in 1831 musical compositions; [4 Stat. 436.] dramatic compositions in 1856; [11 Stat. 139.] and photographs...in 1865." [13 Stat. 540] Mazer v. Stein, 347 U.S. 201, 208-209.
26. 13 Stat. 540. Wood v. Abbott, 30 F.Cas. 424, 5 Blatchf. C.C. 325 (C.C.N.Y.
1866), held that a photograph was not a "print, cut or engraving" as defined by the 1831
act.
According to the circuit court decision in Sarony, "Paintings, drawings, and photographs were the last of the branches of the fine arts to be recognized as worthy of copyright protection [in 1882] in England. Previous to the adoption of the above provision, an act had been passed giving copyright in sculptures and engravings. And in most European countries copyright protection has been extended through the whole range of the fine arts." 17 F. 591, 596.
27. 100 U.S. 82, 25 L.Ed. 550, 552.
28. The answer did not come in the interim case of Baker v. Selden, 101 U.S. 99 (1879), in which the Court refused to grant protection to accounting forms.
29. His biographer writes that Sarony, "already a huge success as a draftsman and publisher of popular lithographs before the war...learned photography and established a studio on Broadway in New York in 1866--exactly the right time to take advantage of the American public's growing fascination for the theater by satisfying the accompanying demand for pictures of its stars. For the next thirty years Sarony photographed every actor and actress working on the New York stage." B. L. Bassham, The Theatrical Photographs of Napoleon Sarony (Kent, 1978), 3.
30. Wilde's manager arranged the sitting to publicize his principle's arrival in New York.
He did so without the usually bickering over fees. See Bassham, op cit. at 72 and Lewis
& Smith, infra.
According to one biography of Wilde, Sarony didn't even snap the shutter: "'A picturesque subject indeed!' cried little Sarony, dancing about till his habitual red fez shook, as Wilde arrived holding a white cane across his fur-lined overcoat. Sarony took him first in his seal-skin cap, then bareheaded in his long trousers, then bareheaded in his knee breaches. As each pose was held Sarony would cease jabbering, turn and stare out the window in rapt silence while an assistant took the picture." L. Lewis & H. J. Smith, Oscar Wilde Discovers America (1882) (New York, 1936), 39.
31. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
32. Id.
33. Id. at 60.
34. 17 F. 591 (C.C.N.Y. 1883).
35. Id. at 596.
36. Id. at 597-598.
37. L. Figuier, La Photographie au Salon de 1859 (Paris, 1860), 14 quoted in N. Rosenblum, op cit. at 213.
38. 17 F. 591, 599.
39. Id. at 600.
40. 111 U.S. 53, 59.
41. Id.
42. Bassham, op cit. at 4.
43. Id. Sarony even paid some of his subjects rather large fees. For instance, he paid Sarah Bernhardt $1,500 in 1880 and Lillie Langtry $5,000 in 1882.
44. Many of the first photographers can better be described as scientists and experimenters. Amateur is perhaps not an apt word. Some of those who might be described as amateur were perhaps at the forefront of the development of the art. Whether at the forefront or not, the elder Oliver Wendell Holmes was, for example, among the more notable amateurs of the day. He actually wrote articles on the subject which appeared in the Atlantic Monthly in 1859 and 1863. Newhall, op cit., 53-78. Lewis Carroll (Rev. Charles L. Dodgson) was also a worthy amateur. N. Rosenblum, A World History of Photography, (New York, 1984) 60.
45. Eastman's camera cost $25.00. It contained a role of film capable of making 100 pictures. The user on finishing the role returned the whole camera to Eastman for processing. An additional $10.00 sufficed to refill the camera. L. Mark, Photographs That Changed the World, (Toronto, 1989) 12.
46. This proved to be quite a booming business. Private portraits could be obtained from the studios in larger cities, while itinerant photographers went about the country making their services available in less populated areas. F. Rinhart & M. Rinhart, op cit. (Athens, Ga., 1981).
47. See N. Rosenblum, op cit. at 62-73. A carte portrait of Lincoln, sans beard, taken February 27, 1960 by Mathew Brady was said to have helped Lincoln win the presidency. See portrait in Newhall, op cit. at 49.
48. Wilde brought Langtry to Sarony for her sitting. Apparently, her portrait was well received as it was going for $5.00 in the shops. Lewis & Smith, op cit. at 418-419.
49. 188 U.S. 239.
50. Dissenting, Justice Harlan found the poster without artistic merit, having no value at all except from its function as an advertisement. Not only was the work without any aesthetic qualities, it also lacked a quality of intrinsic usefulness required by the Constitution. Id. at 252. For Holmes however, the illustrations in the poster were no less valuable just because they were used for advertising.
51. At 111 S.Ct 1282, 1294, Justice O'Connor says, "There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. See generally Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460 (1903) (referring to 'the narrowest and most obvious limits'). Such works are incapable of sustaining a valid copyright. Nimmer § 2.01[B]."
52. 188 U.S. 239, 250.
53. Id. at 251.
54. Act of Aug. 24, 1912, 37 Stat. 488.
55. Thomas Edison once filmed the launching of a ship. See Edison v. Lubin, 122 F. 240 (3rd Cir. 1903), appeal dismissed for want of jurisdiction, 195 U.S. 625 (1904). Edison's motion picture of the launching, being a sequence of pictures on celluloid film, was found to be a photograph. Originality did not surface as an issue, only whether Edison's one copyright notice on the sheet of film sufficed for the whole. The court held that it did and thus each frame did not have to be individually marked.
56. 234 F. 963 (S.D.N.Y. 1916).
57. Id. at 964.
58. 212 F. 930 (2nd Cir. 1914).
59. 281 F. 83 (2nd Cir. 1922), cert. denied, 259 U.S. 581 (1922).
60. See for example Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (1st Cir. 1905). Cf. Edward Thompson Co. v. Amer. Law Book Co., 122 F. 922 (2nd Cir. 1903).
61. 91 F.2d 484 (9th Cir. 1937).
62. 274 F. 932, 934-935.
63. Nimmer, § 2.08[E].
64. One case did hold however that a commercial photograph of a chair was not entitled to copyright. See Laskowitz v. Marie Designer, Inc., 119 F.Supp. 541 (S.D.Cal. 1954).
65. 293 F.Supp. 130 (S.D.N.Y. 1968).
66. Id. at 131.
67. Id. at 133-134.
68. Id. at 144.
69. Id. at 141.
70. Id. quoting 274 F. 932, 934.
71. Act of October 19, 1976, 90 Stat. 2541.
72. The accompanying House Report, H.R. 92-1476, 94th Cong., 2d Sess. 53 (1976), discusses the distinction between the work and medium: "The definitions ... in § 101 ... reflect a fundamental distinction between 'original works' which is the product of 'authorship' and the multitude of material objects in which it can be embodied. Thus ... a 'book' is not a work of authorship, but is a particular kind of 'copy.'"
73. Act of March 4, 1909, 35 Stat. 1075, later codified as 17 U.S.C. by an Act of July 30, 1947, 61 Stat. 652.
74. Section 5(n) added by Act of Oct 15, 1971, 85 Stat. 391.
75. H.R. 92-1476.
76. See Baker v. Selden, 101 U.S. 99 (1879).
77. ___U.S.___,___, 111 S.Ct. 1282, 1290-1291.
78. Patry, op cit., at 42.
79. 281 F. 83, 88.
80. Patry, op cit., at 43-45.
81. Interestingly, exact expression received protection, but other forms of copying did not. Stowe v. Thomas, 23 F.Cas. 201 (C.C.E.D. Pa. 1853) held that translating Uncle Tom's Cabin to German did not infringe the book. Congress remedied this by an Act of July 8, 1870, 11 Stat. 138.
82. See H. B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," 29 Wayne L.Rev. 1119 (1983).
83. See 8 Anne c. 19, § 1, the preamble.
84. See Patterson & Joyce, "Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations," 36 UCLA L.Rev. 719, 787-788 (1989).
85. See Erie Railroad v. Thompkins, 304 U.S. 64 (1938), holding that in diversity proceedings, state law applies; there is no federal common law.
86. Patry, op cit., at 45.
87. See R. Denicola, "Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works," 81 Colum. L.Rev. 516, 519-520 (1981).
88. Letter to Oliver Evans (May 1807), V Writings of Thomas Jefferson, at 75-76 (Washington ed.), quoted in Graham v. John Deere Company of Kansas City, 383 U.S. 1, 9 (1966).
89. 8 Anne c. 19, § 1.
90. 422 U.S. 151, 156 (1975).
91. Quoted in Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 431-432.
92. Adopted by Brennan, J. (diss.) in Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 582 (1985), citing International News Service v. Associated Press, 248 U.S. 215 (1918); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2nd Cir. 1966), cert. denied, 385 U.S. 1009 (1967).
93. 471 U.S. 539, 545, (1985).
94. See David Vaver, "Intellectual Property Today: Of Myths and Paradoxes," 69 Can. Bar Rev. 98 (1990).
95. Here copyright is used to protect first publications rights. Another instance of the use of copyright to apparently stifle the public's right to know is found in Salinger v. Random House Inc., 811 F.2d 90 (2nd Cir. 1987). The now reclusive author of the Catcher in the Rye succeeded in maintaining his privacy by the keeping letters he had written out of an unauthorized biography.
96. 17 U.S. (4 Wheat.) 316 (1819).
97. The Supreme Court said, "As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product." Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 429.
98. 222 U.S. 55 (1911), holding that the public performance of a motion picture based on a copyrighted book constitutes an infringement of the book.
99. Id. at 63.
100. 464 U.S. 417, 431.
101. In the last two major revisions of copyright law--1909 and 1976--Congress has paid careful attention to the patent-copyright clause. See for instance this House Report statement of 1909: "In enacting a copyright law Congress must consider ... two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly." H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909) quoted in Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 429 n. 10.
102. 17 U.S.C. § 301 preempts any state jurisdiction over copyright. Formerly, unpublished works were protected in perpetuity by the common law.
103. Works created as "works-for-hire" are protected for a simple 75-year term. See 17 U.S.C. §§ 302-305 for various rules, including transition rules for copyright duration.
104. Certainly, the latest act has made some advances. For instance, the Copyright Act now provides for a termination right. Thirty-five years after the giving of any assignment the author or the author's personal representative may terminate the original grant. This right cannot be alienated. Another example of the primacy of authors' interests is suggested by the adoption of the Berne Convention and the movement to enlarge the moral rights of authors. Still another instance is the removal of the printing requirement for English speaking books. Before July 1, 1986, subject to several exceptions introduced over the years, books written in English and not printed in the United States or Canada did not receive full copyright protection. 17 U.S.C., § 601. While the House Report accompanying the 1976 Act found some justification for these provisions, it concluded they should be eliminated. H.R. 94-1496.
105. See Patry, op cit. at 44.
106. ___ U.S. ___, ___, 111 S.Ct. 1282, 1290.
107. H.R. 94-1476.
108. ___ U.S. ___, ___, 111 S.Ct. 1282, 1296.
109. 248 U.S. 215 (1918).
110. Id. at 254. According to Geis, the "reference to photographs was not necessary to the point being made and in any event it seems clear that Mr. Justice Brandeis was mistaken." 293 F.Supp. 130, 143.
111. 404 U.S. 887 (1971). The Court refused to grant certiorari.
112. Id. at 890.
113. Id. at 891-892.
114. One can always counter that the particular position on the balcony where the photographer stood was indeed significant.
115. For instance, the photographer might shoot hundreds of pictures and later find artistic merit in only one or two. The painter, on the other hand, will not have such luxury in experimentation.
116. 293 F.Supp. 130, 143.
117. 191 F.2d 99 (2nd Cir. 1951). See the cases discussed in L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2nd Cir. 1976) (en banc), cert. denied, 429 U.S. 857 (1976).
118. Perhaps Alfred Bell is not good law after Feist, except it may be distinguishable because the trial judge found, "no two engravers can produce identical interpretations of the same oil painting." 74 F.Supp. 973 (S.D.N.Y. 1947).
119. 177 F.Supp. 265 (S.D.N.Y. 1959).
120. Id. at 267.
121. While Alfred Bell is still probably good law after Feist, the same cannot be said for Alva.
122. 536 F.2d 486 (1976) (en banc), cert. denied, 429 U.S. 857 (1976).
123. Id. at 492.
124. Id. at 491-492.
125. 698 F.2-d 300 (7th Cir. 1983).
126. 536 F.2d 486 at 492.
127. 698 F.2d 300, 305.
128. For that matter, the work of making a precise scale-model of Rodin's 'Hand of God' in Alva, as Oakes suggested in Batlin, promoted arts and sciences by giving protection to a work which would otherwise not be available to the public.
129. Going back to Pouillet's Propriete Litteraire et Artistique, we remember that the middle ground offered was rejected because it would only lead to arbitrariness. Judges and juries are better able to assess when a work is original, in the sense that it is not copied from something else, as opposed to judging its merit as art.
130. See Holmes, J. in Bleistein, supra, at 188 U.S. 239, 250: "Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has something irreducible, which is one man's alone." See also Clark J. in Deere, supra, at 383 U.S. 1, quoting Jefferson: "Monopolies may be allowed to persons for their own productions in literature, & their own inventions in the arts..." See also Douglas, J. in Lee v. Runge, supra, 404 U.S. 887, 890: "An author's 'Writing' or an inventors 'Discovery' can, in the constitutional sense, only extend to that which is his own." [Emphasis added.]
131. As was said in John Deere 383 U.S. 1, 9, "Jefferson did not believe in granting patents for small details, obvious improvements, or frivolous devices."
132. So too within copyright law itself, some works appear more protectable than others. Artistic works are more likely protected than commercial works: Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277 (3rd Cir. 1991). Historical works get less protection that works of fiction: Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2nd Cir. 1980); Miller v. Universal City Studios, Inc. 650 F.2d 1365 (5th Cir. 1981).
133. Congress can specify a more critical standard. It may be, however, that Congress is justified in not doing so if it believes such a standard would act as a disincentive to authors. Encouraging publication of original works perhaps does not begin by telling would-be authors that their creations will undergo scrutiny, even if such scrutiny is minimal.
134. As was said in Alfred Bell, 191 F.2d 99: "[E]ven if their substantial departures from the paintings were inadvertent, the copyrights would be valid. 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."
135. Ordinarily though, the fair use doctrine will play a role where the issue of originality does not. However, as its name implies, the doctrine is concerned with the use of the work rather than its originality. One use may be protected while another will not be.
136. The suggestion that a person asserting originality must prove it is also an unfortunate way to characterize the process of judging copyright entitlement.
137. Without even considering fair use issues, the same copying may be infringement in one instance and not in another. Consider, for instance, an anthology of 20 classic poems. Suppose someone copying that selection, publishes a work containing precisely the same poems, even if in a different order. The case for infringement would be far stronger than in the instance of the copyist adding 20 or 50 more poems to the later work.
138. Here is a hypothetical that may illustrate the problem with the idea\expression dichotomy. Given a work, one can conceive of a situation where ten other works each take from the original a part so that if the original had a tangible existence, it would disappear. Yet none of the other works individually can be said to infringe the original. Where then is the idea? Where then is the expression? The point is there was never any difference between expression and idea in the first place. One idea by itself is just an idea. However, several ideas in combination become the expression, the expression nobody can take. The hypothetical may have a practical counterpart. Take this note for instance. It contains sixteen sentences. The whole of the paragraph cannot be taken because of its uniqueness. The same cannot be said for any one sentence. For this reason, titles are not normally subject to copyright. Of course, the application of the fair use doctrine may permit copying the entire footnote. This would still not affect its originality as a whole.
139. 45 F.2d 119 (2nd Cir. 1930).
140. Id. at 121.
141. Compare G. Hammond, "The Legal Protection of Ideas," 29 Osgoode Hall L.J. 93, 111, n. 54 (1991), who for instance reads Roy Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137, 1145 (S.D.N.Y. 1980) differently. There, Judge Ward suggested that taking the ten or fifteen minutes sequence of the burning of Atlanta out of Gone with the Wind would still amount to a substantial taking.
142. Id.
143. Fair use, in the context in which Judge Hand used it, should not be understood to have its modern meaning under § 107 of the Copyright Act.
144. In Feist, the Court recognized that the entire volume produced by the telephone company--its introductory portion and yellow pages--was entitled to protection.
145. It is still doubtful that even a particularly unique page lay-out combined with a new
font would attract copyright protection. However, an argument might be made on the
basis of West Publishing Co. v. Mead Data Central, Inc., 616 F.Supp. 1571 (D. Minn.
1985), aff'd, 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). In
1985, Mead Data proposed its "Star Pagination Feature," on its Lexis data base service.
The feature cites page numbers from volumes of published law reports, the plaintiff's
included. West, the leading publisher of American law reports, obtained a preliminary
injunction preventing Mead Data from referencing West's pages. That there may exist
copyright protection for such a product as page numbers seems now far-fetched after
the Feist decision. For a critique of West Publishing see Patterson & Joyce, op cit.
The Copyright Office has a policy of not accepting typefaces for registration. The
Office has now announced that it will reconsider its 1988 decision (53 F.R. 33110), which
requires registrants of computer programs to disclaim copyright in that portion of the
data that fixes or depicts a typeface, type font or letter form. See 56 F.R. 42073 (No.
165). These rulings followed the rejection of copyrightability in the 1976 House Report
(H.R. 94-1476), as well as Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). In
Eltra, the court denied a mandamus application compelling the Registrar of Copyrights to
register the applicant's typeface design. Under former § 202.10(c), 37 C.F.R., now
codified in § 101, the Copyright Office viewed typefaces as utilitarian in nature and for
that reason not entitled to registration.
This utilitarian wrinkle in copyright law was first given life in Mazer v. Stein, 347 U.S. 201 (1954). Later, as noted, the Copyright Office incorporated it in its rules. See for instance its application to clothing designs under 56 F.R. 20241. I believe that simple considerations of originality are at the heart of the rule and the rule itself only serves to confuse the subject. For that reason it is better to accept a rule of non-copyrightability for some classes of works. The Copyright Office has done this in 37 C.F.R. 202.1 for categories such as titles, lettering and blank forms. See for instance Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1989), holding a medical insurance claim form not entitled to copyright. This followed the original articulation of the rule in Baker v. Selden, 101 U.S. 99 (1879).
146. See Arnstein v. Porter, 154 F.2d 464 (2nd Cir. 1946).
147. 81 F.2d 49, 54 (2nd Cir. 1936).
148. Id. at 53-54. Hand said in Sheldon: "At times, in discussing how much of the substance of a play the copyright protects, courts have indeed used language which seems to give countenance to the notion that, if a plot were old, it could not be copyrighted. London v. Biograph Co. (C.C.A.) 231 F. 696; Eichel v. Marcin (D.C.) 241 F. 404. But we understand by this no more than that in its broader outline a plot is never copyrightable, for it is plain beyond peradventure that anticipation as such cannot invalidate a copyright."
149. Accounting for access is too problematic a factual issue. Expecting a plaintiff, even given liberal discovery practices and techniques, to establish an opponent's access is simply unfair. The defendant's web of contacts will, like anyone else's, involve such geometric proportions that making the right connections will be impossible. Still direct evidence of access may be helpful as it may indeed turn a doubtful case into a certain one. As well, evidence of the impossibility of access, particularly where the plaintiff supplies that information, may assist a court in determining whether two works are actually similar. See Twentieth Century-Fox Film Corp. v. Diekhaus, 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716 (1946), where the plaintiff's unpublished work was kept in a vault. See also Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984). However, it is the comparison of the works which affords an adequate basis for determining whether there has been improper copying.
150. See, for instance, Sid & Marty Krofft Television v. McDonald's Corp. 562 F.2d 1157 (9th Cir. 1977).
151. For example, see Heim v. Universal Pictures Co., (2nd Cir. 1946), where defendant claimed his composition was only similar to the plaintiff's because they both utilized a theme of Dvorak which itself was based on older commonplace one.
152. See, for instance, Walker v. Time Life Films, Inc., 784 F.2d. 44 (2nd Cir. 1986), involving a 1976 book about police work in the Bronx, entitled "Fort Appache," and the later movie, "Fort Appache: The Bronx."
153. Exceptions may arise where the work is only a copy of something else, e.g., a photograph of a photograph or where the creation is not a work of authorship. For instance, if a security camera videotapes an event, can it be said that someone is the author of the film?
154. 17 F. 591, 600-601.
155. A phonerecord is to be distinguished from a sound recording. The latter is a work, the former, a mere physical rendering. A phonerecord will often embody two copyrights, one for the music (or words alone, if it is a literary work), and one for the actual recording.
156. Act of Oct 15, 1971, 85 Stat. 391.
157. Freedom to imitate is not absolute. Under state law, a professional singer may have a cause of action for personality appropriation in a sound-alike recording. See Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
158. Copyright in a sound recording simply protects the technology, while otherwise ignoring the human creativity. Only the sounds in their captured state, the pure product of technology, have the protection of copyright. If a sound recording can be imitated, then in a sense, the artistic efforts of the performers, producers or engineers have no legal protection. Even the decision to start or stop the recording gets no recognition.
159. A fingerprint is a simple creation, but, as everyone knows, no two are alike. Of course, no one has demonstrated that it is impossible for two persons to have the same set of prints. However, it is fair to say that there must be, with any degree of precision, a finite number of possible combinations of prints. Yet only because that number is so large and the corresponding probability of duplication so small that we can conclude that no two people can have the same prints.
160. F.W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1st Cir. 1951); Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 63 (3rd Cir. 1978), cert. denied, 439 U.S. 880 (1978). See also dicta in Pagano v. Charles Beseler Co., 234 F. 963 (S.D.N.Y. 1916) and Gross v. Seligman, 212 F. 930 (2nd Cir. 1914).
161. Nimmer § 2.09[F], 2-138.
162. In Kisch v. Ammirati & Paris Inc., 657 F.Supp. 380, 382 (S.D.N.Y. 1987), Judge Leisure said, "the copyrightable elements include such features as the photographer's selection of lighting, shading, positioning and timing."
163. In Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 669, n. 7, (7th Cir. 1986), cert. denied, 107 S.Ct. 1593 (1987), a footnote suggests that the player's performances in a baseball game may constitute copyrightable subject matter. Nimmer criticizes this approach for various reasons including the court's expressed doubts about the creativity of the performance. Nimmer § 2.09[F] 2-138, 2-138.3.
164. Plays and scripts normally contain direction as well as dialogue. In the usual course, the script is part of the audiovisual work, and therefore not a literary work. Nothing, however, prevents the script from being copyrighted as a dramatic work and later being incorporated in a film as a derivative work. Note some major motion pictures have separate copyrights in the screenplay and the film.
165. Nimmer says: "there is little question but that a performer's rendition of a work written by another may in itself constitute an original work." See Nimmer 2.10[A], 2-144.1, citing Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2nd Cir. 1955); Waring v. WDAS Broadcasting Station, Inc., 327 Pa 433, 194 A. 631 (1937). In Capitol Records, 221 F.2d 657, 664, Hand, dissenting--with the majority agreeing on this point--said, "Congress could grant the performer a copyright...provided it was embodied in a physical form capable of being copied." See Nimmer § 2.10[A], 2-145.
166. See Wheaton and Donaldson v. Peters and Grigg, 33 U.S. 591, 659, 8 Pet. 591, 8 L.Ed. 1055 (1834).
167. See Rochelle Asparagus Co. v. Princeville Canning Co., 170 F.Supp. 809 (S.D. Ill. 1959); International Biotical Corp. v. Associated Mills, Inc., 239 F.Supp. 511 (N.D. Ill. 1964). Both these cases involved one competitor's claim of copyright infringement against another's use of similar photographs contained in commercial illustrations.
168. Camera position involves only a few basic forms: With the camera still the operator can zoom in and out or pan back and forth. The camera itself can move forward, backward, right or left, or up and down. It is the combination of these movements which invariably will produce a unique result.
169. This hypothetical would probably not have a practical counterpart. Those photographs, so lacking in artistic merit, would probably not be copied or if copied, no one would notice or care.
170. In Geis, however, this was not the basis for finding that reproducing the film by sketching it could constitute infringement.
171. See Horgan v. MacMillan, Inc. 789 F.2d 157 (2nd Cir. 1986), reversing and remanding 621 F.Supp. 1169 (S.D.N.Y. 1985). The estate of George Balanchine alleged infringement of his copyrighted Nutcracker choreography. MacMillan published a book containing photographs that seized moments of a Nutcracker performance. The estate complained the book constituted an unauthorized derivative work. The trial court decided in favor of the publishers. The basis for the right of copyright in the ballet was its movement, something a photograph could not capture. The appeal court, however, felt that it was still possible for a photograph to infringe the choreography.
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