10. Copyrightable Subject Matter and the Requirements of Originality and Fixation
Learning Objectives: Unit 10
Upon completion of this unit, you should be able to:
- Recall the facts and legal holding of Feist v. Rural.
- Explain the Court’s analysis in Feist v. Rural and the concept of “thin” copyright
protection. - Explain the meaning of author, originality, and the fact/expression dichotomy in the
context of copyright law. - Recall the basic statutory structure of copyright law.
A fundamental question in intellectual property law is whether the subject matter over which a legal right is being asserted is the kind of stuff that is within the scope of a given intellectual property right. This question matters because it effectuates a policy decision that a given legal right will only apply to certain types of human-created intangibles. Feist v. Rural exemplifies this issue. It involves a claim of copyright infringement over a telephone directory—or, at least, the contents of that directory. To understand the issue of subject matter and the problem posed in Feist v. Rural, you will first necessary to have a background knowledge of the relevant provisions of the Copyright Act. Before reading Feist, you should read 17 U.S.C. §§ 101, 102, 103, 104, & 105.
17 U.S.C. §101. Definitions (2010)
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
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A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.
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“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
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A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
17 U.S.C. §102. Subject matter of copyright: In general (1990)
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary 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;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery
17 U.S. Code § 103. Subject matter of copyright: Compilations and derivative works (1976)
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
17 U.S. Code § 104. Subject matter of copyright: National origin (1998)
(a) Unpublished Works.— The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.
(b) Published Works.—The works specified by sections 102 and 103, when published, are subject to protection under this title if—
1. on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or
2. the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or
3. the work is a sound recording that was first fixed in a treaty party; or
4. the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
5. the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
6. the work comes within the scope of a Presidential proclamation
For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be.
(c) Effect of Berne Convention.—No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.
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17 U.S. Code § 105. Subject matter of copyright: United States Government works (2019)
(a) In General.— Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
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