and unpublished works.
stream of speech” and indicate that he or she
The Copyright Act does not protect
wished to exercise his or her control over its
oral expressions that go unrecorded, since
publication. ( Hemingway v. Random House,
they aren’t fixed. Likewise, copyright does
296 N.Y.S.2d 771 (N.Y. 1969).)
not protect expression that exists in your
This means that a person who wants to
mind but that you have not set to paper or
protect what is said during a conversation
otherwise preserved. For example, if ancient would have to say something like, “I reserve Greece had had a copyright law the same
all my copyright rights in what I’m about to
as ours, Homer’s Iliad (which, according to say.” Obviously, people rarely do this during tradition, Homer composed and recited in
ordinary conversation.
public, but never wrote down or otherwise
On the other hand, courts may be more
recorded) would not have been protected by willing to give common law copyright pro-
the federal Copyright Act. However, such
tection to words spoken outside of ordinary
unfixed works may be protected by state
conversation—for example, to unrecorded
copyright laws, also known as common law lectures and speeches. For example, one
copyright.
court held that a professor’s lectures were
California has a law that broadly recognizes protected by common law copyright.
rights in unfixed original works of authorship. ( Wil iams v. Weisser, 273 Cal.App.2d 726
(Cal. Civil Code § 980.) Other states don’t
(1969).) There are distinct, identifiable
have such laws (though several do outlaw
boundaries to a speech or lecture—that is,
unauthorized commercial recording of live
a clear beginning and end—so it is easier
performances). Courts in some of these
for both the public and the courts to under-
states have given common law copyright
stand what is and is not protected.
112 | THE COPYRIGHT HANDBOOK
Still other courts have refused to protect
sunset and are so impressed, they decide to
unfixed words at al . For example, a court
go back to their adjoining staterooms and
in New Jersey refused to grant common law
each write a poem about it. Not surprisingly,
copyright protection to the words spoken at
the poems turn out to be almost identical—
a “scared straight” program in which inmates
after al , the twins think virtual y alike.
serving life sentences confronted juveniles
However, since they were independently
who had begun experiencing difficulties
created, both poems are entitled to
with the law. ( Rowe v. Golden West Television
copyright protection despite the similarities.
Prod. , 184 N.Y.S. 264 (1982).)
Derivative Works and Compilations
Requirement #2: Originality
A work consisting of expression that is
It is not necessary that an entire work be
independently created by its author for
written down or otherwise fixed in a
it to be protectable. Copyright protects
tangible form is protected by copyright only
works created by adapting, transforming,
if, and to the extent, it is original. But this
or combining previously existing material
does not mean that a written work must
in new ways. These types of works are called
be novel—that is, new to the world—to be
derivative works or compilations and are
protected. For copyright purposes, a work is
discussed in Chapter 6, “Adaptations
original if it—or at least a part of it—owes
and Compilations.” The main point to
its origin to the author. A work’s quality,
remember about derivative works and
ingenuity, aesthetic merit, or uniqueness
compilations here is that they aren’t
is not considered. In short, the Copyright
protected by copyright if they infringe
Act does not distinguish between the
upon a copyright in the original works.
Great American Novel and a six-year-old’s
letter to her Aunt Sally; both are entitled
to copyright protection to the extent they
were not copied by the author—whether
Requirement #3: Minimal Creativity
consciously or unconsciously—from other
works. So long as a work was independently Final y, a minimal amount of creativity
created by its author, it is protected even if
over and above the independent creation
other similar works already exist.
requirement is necessary for copyright
protection. Works completely lacking in
EXAMPLE: Tom and Tim are identical twins
creativity are denied copyright protection
who do everything together. While on a
even if they have been independently created.
Caribbean cruise, they enjoy a spectacular
However, the amount of creativity required is
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 113
very slight. A work need not be novel, unique, is considered to be completely lacking
ingenious, or even any good to be sufficiently in creativity and is not protectable (but creative. All that’s required is that the work
explanatory material or another original
be the product of a very minimal creative
expression in a recipe or another list is
spark. The vast majority of written works—
protectable). Telephone directory white
including catalog copy, toy instructions, and pages are also deemed to lack even minimal third-rate poetry—make the grade.
creativity. Other listings of data may also
completely lack creativity; see the detailed
Legal Protection for Cookbooks
discussion in Chapter 6, “Adaptations and
Compilations.” The Copyright Office will
If you publish your grandmother’s special
not register such works.
pie crust recipe in a cookbook, can it be
freely copied? Unfortunately, a listing of
Examples of Works Containing
ingredients for a recipe is not protected
Protected Expression
by copyright. But this doesn’t mean there’s
no legal protection at all for cookbooks.
Let’s now put these three requirements—
The text in cookbooks—other than simple
fixation, originality, and minimal creativity
listings of ingredients—is protected, as are
—together by looking at a list containing
photographs and drawings.
examples of the types of works that
Also, at least in theory, recipes can
commonly contain protected expression:
qualify for patent protection. However,
• advertising copy
chefs rarely apply for patents, because it’s
• blank forms that convey information
a long and expensive process, and only a
• catalogs, directories, price lists, and
small minority of recipes are patentable.
other compilations of informa
tion
To qualify for a patent, a recipe must
• fiction of any length and quality
be (1) novel—unique in some way, and
• instructions
(2) nonobvious—surprising to a chef of
• interviews, lectures, speeches, jokes,
ordinary skil . Few recipes are both novel
and so on that are fixed in a tangible
and nonobvious.
medium of expression
• leaflets and pamphlets
• letters and diaries, whether or not they
But there are some types of works that
have any artistic merit or general interest
are usually deemed to contain no creativity
• magazines, newspapers, newsletters,
at all. For example, a mere listing of
periodicals, journals, and other serial
ingredients or contents, such as in a recipe,
publications
114 | THE COPYRIGHT HANDBOOK
• nonfiction of any length and quality
What Copyright Does Not
• plays
Protect: The Boundaries
• poetry
of the Public Domain
• reference books and technical writings
• screenplays
Towns and cities of the 18th and 19th
• song lyrics, whether or not combined
centuries often had a common: a centrally
with music
located unfenced area of grassland that
• textbooks, and
was free for all to use. Authors also have a
• websites, blogs, and email.
common: It’s called the public domain. The
public domain contains everything that is
Copyright Protection for Music,
not protected by copyright and is therefore
Movies, Sound Recordings,
free for all to use without permission.
Computer Software, and Pictorial,
Without the public domain, it would
Graphic, and Other Types of Work
be virtually impossible for anyone to write
any thing without committing copyright
This book focuses on copyright protection
infringe ment. This is because new
for works consisting whol y or primarily of
expression is not created from thin air; all
words. However, copyright protects more
authors draw on what has been written
than just words. Provided that the three
before. As one copy right expert has noted,
fundamental requirements—fixation,
“Transformation is the essence of the
originality, and minimal creativity—are
authorship process. An author transforms
met, copyright protects all types of expres-
her memories, experiences, inspirations,
sion, including music; pictorial, graphic,
and influences into a new work. That
and sculptural works; motion pictures and
work inevitably echoes expressive elements
other audiovisual works; sound recordings;
of prior works.” (Litman, “The Public
pantomimes and choreographic works; and
Domain,” 39 Emory Law Journal 965
architectural works (architectural drawings
(1990).) Without the public domain, these
and blueprints and the design of actual
echoes could not exist.
buildings). If you’re interested in copyright
protection for these types of works, refer to
Chapter 15, “Help Beyond This Book.”
RESOURCE
Computer software programs and com-
For a detailed discussion of all
puter databases are also entitled to copyright
aspects of the public domain, including how to
protection. For detailed coverage of this
find public domain works, see The Public Domain:
topic, see Legal Guide to Web & Software
How to Find & Use Copyright-Free Writings, Music,
Development, by Stephen Fishman (Nolo).
Art & More, by Stephen Fishman (Nolo).
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 115
Ideas and Copyright
Patent Laws Protect
Copyright only protects an author’s tangible
Ideas for Inventions
expression of ideas, not the ideas themselves.
Ideas embodied in novel and nonobvious
Ideas, procedures, processes, systems,
inventions can be protected under U.S.
methods of operation, concepts, principles,
and foreign patent laws. For a detailed
and discoveries are all in the public domain,
discussion, see Patent It Yourself, by David
free for all to use. In effect, they’re owned by
Pressman and Thomas J. Tuytschaevers
everybody. (17 USC § 102(b).)
(Nolo).
There is a good reason for this: If authors
were allowed to obtain a monopoly over
their ideas, the copyright laws would end
up discouraging new authorship and the
progress of knowledge—the two goals
Facts and Copyright
copyright is intended to foster.
Copyright does not protect facts—whether
However, although ideas are not
scientific, historical, biographical, or news
protect able in themselves, an author’s
of the day. If the first person to write about
particular selection and arrangement of
a fact had a monopoly over it, the spread
ideas may constitute protected expression.
of knowledge would be greatly impeded.
For example, an author’s selection and
Another reason why copyright law does
arrangement of traits (ideas) that make up a not protect facts is that an author does not literary character may be protected.
independently create facts; at most, he or
she may discover a previously unknown
The Unclear Demarcation
fact. Census takers, for example, do not
Between Ideas and Expression
create the population figures that emerge
from a census; in a sense, they copy these
It’s easy to say that copyright does not protect
figures from the world around them. The
ideas, only expression, but how do you tell
Copyright Act does not protect discoveries.
the difference between an unprotected idea
(17 USC § 102(b).)
and its protected expression? These are very
So, the facts contained in works such
fuzzy concepts and, in fact, no one has ever
as news stories, histories, biographies,
been able to fix an exact boundary between
and scientific treatises are not protectable.
ideas and expression; probably nobody ever
Subject to the important limitation of the
can. But after you read the fol owing material,
merger doctrine discussed below, all that is
you should gain a better understanding of this
protected is the author’s original expression
dichotomy.
of the facts contained in such works.
116 | THE COPYRIGHT HANDBOOK
Legal Protection for “Hot News”
Although facts are not protected by copyright, competing newspaper and print them as
state unfair competition laws might protect
its own. But a company that used pagers to
them in
certain narrowly defined situations.
transmit to subscribers real-time NBA game
For example, a court has held that “hot news”
scores and other information tabulated from
is protected under such laws if the fol owing
television and radio broadcasts of basketbal
are true:
games did not commit misappropriation,
• A person or company generates highly
because there was no free-riding involved. The
time-sensitive factual information at
company collected the scores itself; it didn’t
some cost or expense.
steal them from the NBA. ( National Basketball
• Another person’s or entity’s use of the
Assoc. v. Motorola, Inc., 105 F.3d 84 (2d Cir.
information constitutes free-riding on
1996).) Similarly, there was no actionable
the fact gatherer’s costly efforts to collect misappropriation where a website aggregated the information.
and published, before the stock market opened
• The use of the information is in direct
each day, the recommendations made by
competition with a product or service
three investment management firms. There
offered by the fact gatherer.
was no free-riding because the investment
• Other people free-riding on the fact
recommendations reported by the defendant
gatherer’s efforts would threaten its ability were the news itself—the defendant was
to stay in business.
merely reporting their existence. ( Barclays
For example, it would likely be unlawful for a Capital Inc. v. Theflyonthewall.com, Inc. , 650
newspaper to copy news stories contained in a
F.3d 876 (2d Cir. 2011).)
The Merger Doctrine—When Ideas,
works and thereby retard the progress of
Facts, and Their Expression Merge
knowledge. In these cases, the idea or fact
and its particular expression are deemed
Sometimes there is just one way, or only a
to merge and the expression—the author’s
few ways, to adequately express a particular words—is either treated as if it were in
idea or fact. If the first person to write about the public domain or given very limited such an idea or fact could copyright the
copyright protection.
expression, that person would effectively
The merger doctrine applies mainly to
have a monopoly over that idea or fact
factual works, such as histories, biographies,
itself—that is, no one else could write about and scientific treatises, rather than to works it without the original author’s permission.
of fancy, such as novels, plays, and poems.
The Copyright Handbook Page 21