so all of the factual information contained
arrange, and combine all the unprotected
in Sue’s novel is in the public domain.
elements listed above—theme, setting, plot,
characters, scenes, and situations—into an
The work’s writing style and individual
integrated whole. To the extent it is original
words and phrases. Sue’s novel is written in
a highly unusual stream-of-consciousness
(independently created), this selection and
style. She also invented new slang words
combination also constitutes protected
and phrases for her characters to use.
expression. For lack of better terms,
Neither Sue’s style nor her new words and
courts sometimes call this a work’s “total
phrases are protectable. The original and
concept and feel” or its “overall pattern” or
creative word sequences in Sue’s novel are
“fundamental essence.”
protected by copyright, but a writing style
itself is in the public domain, no matter
What’s Protected in a Factual Work
how original it is. So are the individual
Let’s imagine that Commodore Hornblower
words and short phrases a work contains,
spends 12 years researching the sinking
even if the author invented them. For
of RMS Titanic. He scours archives in
example, the new words and phrases in
Britain and America and interviews the
128 | THE COPYRIGHT HANDBOOK
remaining survivors. He then writes and
desired. But see the discussion of plagiarism
publishes a 500-page book describing the
in Chapter 11, “Copyright Infringement.”
Titanic’s voyage in minute detail. The book
Quotations from public domain materials.
contains many previously unknown facts;
Hornblower included in his book numerous
for example, that the ship’s captain actual y
quotations from newspaper reports about
survived the sinking and lived out his life
the sinking. These reports, first published
as a circus performer under an assumed
before 1923, are in the public domain. Their
name. The book ends with a startling new
inclusion in Hornblower’s book does not
interpretation of the facts: The Titanic struck revive their copyright protection. Anyone the fatal iceberg because it was sailing too
can use these quotations in a work of their
fast, and it was sailing too fast because there own. They don’t have to go back to the
was an out-of-control fire in one of its coal
original sources.
bunkers—it was desperately trying to reach
Author’s interpretation of facts. An
port before the fire destroyed the ship.
author’s interpretation of facts is itself a fact
(or a purported fact) that is deduced from
Unprotectable elements of factual works
other facts. Interpretations are therefore
The following aspects of Hornblower’s book also in the public domain. Thus, the
are in the public domain.
commodore’s theory as to what caused the
Research. The facts that an author
Titanic to hit the iceberg (the need to reach
discovers in the course of research are in
port quickly due to the coal bunker fire) is
the public domain, free to al . This is so
no more protectable than the fact that the
even if an author spends considerable effort
Titanic hit an iceberg.
conducting the research. Copyright does
Book design. The commodore’s publisher
not protect the fruits of creative research,
spared no expense on his book. It is filled
no matter how grueling or time-consuming with photos and beautifully designed. Is the
the research may have been. Copyright
book’s “look” protected by copyright? No.
only protects fixed, original, and minimally Book designs—that is, a book’s physical
creative expression. Thus, copyright does not and visual attributes—are considered to
protect the pre viously unknown facts about be unprotectable ideas. This includes the
the Titanic’s voyage that the commodore
choice of typeface style and size, leading
discovered, even though it took him 12
(space between lines of type), arrangement
years to discover them. Anyone is free to use of type on pages and placement, and
these facts—for example, that the captain
spacing and juxtaposition of text and
actually survived the sinking—in any way
illustrations. (46 CFR § 30651 (1981).)
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 129
Protected expression in factual works
Selection or arrangement of facts. In
We now turn to those aspects of a factual
writing his book, the commodore had
work that are protected by copyright.
to select which facts to write about and
arrange them in a certain order. Is this
Literal expression of facts. An author’s
literal expression of facts is, theoretically,
selection and arrangement protected
entitled to protection so long as it is original. expression? If the commodore simply
Thus, anyone who copied the commodore’s
arranged the facts of the Titanic’s voyage
words verbatim or closely paraphrased a
and sinking in chronological order, probably
substantial portion of the language in his
not. A historical chronology is itself a fact
book would infringe on his copyright.
that is in the public domain.
However, because there are often only a
But what if the commodore organized
few ways to express the facts contained in
the facts contained in his book in an
factual works, the protection they receive
original nonchronological way; shouldn’t
may be greatly limited through application
that original arrangement be protected?
of the merger doctrine. In addition, selected Some courts say yes, others disagree.
passages of Hornblower’s book probably
(Compare Pacific & Southern Co. v.
Duncan
could be quoted under the fair use privilege.
, 744 F.2d 1490 (11th Cir. 1984)
(See discussion in Chapter 10, “Using Other (“editorial judgment” makes a new
Authors’ Words.”)
presentation of facts an “original work of
authorship”) with Hoehling v. Universal
Fictional elements in factual works. Horn-
City Studios, Inc.
blower was not only a dogged researcher, but
, 618 F.2d 972 (2d Cir.
had a vivid imagination as wel . He included 1980) (“there cannot be any such thing as
in his book certain scenes and dialogue
copyright in the order of presentation of the
among the Titanic’s passengers and crew
facts, nor, indeed in their selection”).)
that seemed to him likely to have occurred
but were still completely fictional. Fictional Copyright in the Online World
expressions in otherwise factual works
are entitle
d to full copyright protection.
Far more written works are available online
However, an author who represents his or her in digital form, in electronic databases, than work to be completely factual may not bring a in all the libraries of the world. Widespread copyright infringement suit against someone confusion exists as to whether and how
who, relying on such representations, copies much copyright protects written and other
a portion of it thinking it was unprotectable works in the online world, or whether it can fact when it was really protectable fiction.
protect them at all. The remainder of this
( Houts v. Universal City Studios, 603 F.Supp. chapter explores how copyright applies in 26 (C.D. Cal. 1984).)
the digital world.
130 | THE COPYRIGHT HANDBOOK
What Online Materials
or even any good to be sufficiently creative.
Qualify for Copyright
But still, some works of expression lack
even this minimal level of creativity. One
Copyright protects all types of works of
good example of “expression” that was
authorship, including all kinds of written
denied copyright protection was telephone
works, photos, artwork, videos, films, and
directory white pages. (See above for
sound recordings. A digital version of a
detailed discussion.)
work of authorship is entitled to copyright
protection if the requirements discussed below Fixed in a tangible medium of expression are satisfied. The fact that a work in its digital
form can be read only by computers—because A work that is original and minimal y
it consists only of ones and zeros—does
creative must also be fixed in a tangible
not affect copyright protection. Computer
medium of expression to be protected by
“language” is protectable under copyright,
copyright—for example, written down on
just like recorded human words and speech.
paper, or recorded on film or tape. Words
Under the copyright laws, the moment
that are thought or spoken but never recorded
a work of authorship is created, it is
in some tangible medium are not protected.
automatically protected by copyright if, and
There are many ways to fix an expression
to the extent, it is:
in the online world once it’s reduced to
• original—that is, not copied from others digital form. For example, it can be fixed on
• fixed in a tangible medium of
a computer hard disk, flash drive, CD-ROM,
expression, and
or online storage medium such as “the cloud.”
• minimally creative. (See above for a
detailed discussion.)
Rights Enjoyed by Copyright
All three requirements are easily met in
Owners Online
the online world.
Under the general copyright laws, the owner
Originality and creativity
of a work of authorship entitled to copyright
protection automatically acquires a bundle
The originality and creativity requirements
of exclusive copyright rights. Exclusive
pose no special problems at al . A work is
means no one may exercise these rights
sufficiently original if it was independently
without the copyright owner’s permission.
created—that is, not copied from other works. Anyone who does will be liable to the owner The amount of creativity required is
for copyright infringement. These exclusive
very slight. It’s sufficient that a work be the rights are the:
product of a very minimal creative spark. It
• reproduction right—that is, the right
doesn’t have to be novel, unique, ingenious,
to make copies of a protected work
CHAPTER 5 | WHAT COPYRIGHT PROTECTS | 131
• distribution right—that is, the right
These exclusive copyright rights exist in
to initially sell or otherwise distribute
the online world the same way they do in
copies to the public
the physical world. Just as copyright protects
• right to create adaptations (or “deriva-
words printed in books, available to anyone
tive works”)—that is, the right to pre-
with access to a bookstore or library, it also
pare new works based on the protected protects words which are input into computer
work, and
systems and made available to people with
• performance and display rights—that
computers and modems. It’s important
is, the right to perform or display a
to remember, however, that although a
work in public.
copyright owner’s rights are exclusive, they
Are RAM Copies Copies?
A digital work doesn’t have to be stored on
Integrators, Inc. v. Sprint Nextel Corp., 2009 U.S.
permanent physical media like a hard disk to
App. LEXIS 14766 at *18-19 (4th Cir. 2009).)
be used. Instead, it can be stored in temporary
If a RAM copy of a work is a copy for copy-
computer memory, also known as RAM (short
right purposes, simply reading or viewing
for random access memory). RAM exists only
a work online could technically constitute
while a computer is turned on. For example, a
an infringement of the copyright owner’s
computer user may download (copy) a work
reproduc tion right unless it is done with
from the Internet to the RAM in a computer.
permis sion, or it qualifies as a fair use. It seems
The downloaded copy exists for as long as the
likely that simply reading or viewing a work
computer is on—which could be minutes, hours, online is a fair use. Or, at the very least, it’s weeks, or longer. The computer user can read the likely people who post their works on the copy on the computer display or otherwise use
Internet and online services give their implied
the copy. But after turning off the computer, the permission for others to read them—after al , copy is lost unless it is first saved to a permanent why else would they place them online?
storage medium, like a hard disk.
In any event, some copyright experts believe
Most courts have held that a RAM copy
that loading a digital copy into computer RAM
of a work is a copy for copyright purposes.
is not copying as defined in the copyright law,
Since a RAM copy can theoretical y exist for
since the “copy” only exists temporarily and is
a very long time (even years, if a user keeps a
lost when the computer is shut off. Under this
computer on that long), these courts view it
view, reading or browsing copyrighted works
as being sufficiently fixed to merit copyright
online is permissible as long as a permanent
protection. ( MAI v. Peek Computer, Inc.,
copy is not made—for example, on a hard disk,
991 F.2d 511 (9th Cir. 1993); Quantum Sys.
flash drive, or hard-copy printout.
132 | THE COPYRIGHT HANDBOOK
are subject to some important exceptions,
done by individuals in the online world
most notably the fair use privilege.
l
ikely qualifies as a fair use.
Let’s now take a closer look at what these
copyright rights are and how they apply in
Distribution right
the online world.
A copyright owner has the exclusive right
to distribute copies of his or her work to
Reproduction right
the public by sale, rental, or lending. This
The reproduction right is the right to make includes making a work available to the
copies of a work. This is the most funda-
public on the Internet.
mental copyright right. Subject to the fair
But there is a very important exception
use privilege, a copyright owner has the
to the distribution right: Once a copy is
exclusive right to make copies of his or her
sold or otherwise distributed, the new
work online. The exclusive reproduction
owner of the copy may sell or otherwise
right extends not only to text, but to
transfer that particular copy without the
graphics, pictures, and sounds.
copyright owner’s permission. This is called
A copy of a work of expression is made
the first sale rule. For example, if you buy
whenever the work is digitized—that is,
a book in a bookstore, you may sell the
converted to a series of binary ones and
book (technically, a copy of the underlying
zeros that can be read by a computer—and work of expression covered by copyright)
placed into a permanent computer storage
to a used bookstore without the copyright
device such as a hard disk, a CD-ROM, or
owner’s permission. But you can’t make
an online storage medium.
additional copies of the book. There are
If a person downloads (transfers) this
two exceptions to this rule: Computer
digital copy into a personal computer and
programs and sound recordings can’t be
saves it on a permanent storage medium, a
rented, leased, or lent to others without the
second copy is made. If this person prints
copyright owner’s permission. But they may
out a hard copy of the work on paper,
be sold or given away without permission.
a third copy is made, and if the person
The first sale rule could apply to digital
then transmits digital copies to other
works, such as ebooks—there is nothing in
computers over a network and such copies
the copyright law to prevent this. However,
are permanently stored, additional copies— the copyright owners of most such works
The Copyright Handbook Page 24