Copyright Law - Cases and Materials (v8.0)

• Students arrive with varying levels of prior knowledge about copyright, ranging from a basic working understanding to complete unfamiliarity.
• The book provides a comprehensive grounding in the fundamentals of U.S. copyright law through a structured examination across nine chapters.
• Chapters I through IV cover historical foundations, theoretical justifications, protectable subject matter, ownership rules, and duration.
• Chapters V and VI explore exclusive rights granted to owners, special complexities in the music industry, and the fair use doctrine.
• Chapters VII through IX address direct and secondary infringement liability, litigation procedures, remedies, and anti-circumvention provisions.
• Copyright is formally defined as a set of limited rights granted by law to authors of original artistic and literary works fixed in a tangible medium.

Some law students come to the subject of copyright law with at least a rough working understanding of what copyright is, and what it does.

• Chapter I outlines the foundations of intellectual property, distinguishing copyright from patent and trademark laws.
• Copyright protects a diverse range of artistic, literary, and architectural works, including the unique inclusion of computer software as a literary work.
• Patent law is designed to protect scientific and technological inventions, while trademark law safeguards brand identifiers like logos and slogans.
• The U.S. Constitution's Intellectual Property Clause serves as the primary federal source authorizing Congress to enact copyright and patent laws.
• International treaties and theoretical justifications also play a significant role in shaping the broader framework of copyright law.

Computer software? Yes, software is, somewhat counterintuitively, classified as a “literary work.”

• The U.S. Constitution combines copyright and patent powers into a single clause granting Congress the authority to promote science and useful arts.
• In eighteenth-century terminology, the word 'science' referred broadly to learning, which explains its use in the constitutional copyright clause.
• The Copyright Act of 1976 serves as the primary federal statutory source for modern U.S. copyright law.
• Federal court decisions play a crucial role by interpreting statutory provisions like fair use and establishing principles where the statute is entirely silent.
• Judicial decisions have historically shaped copyright law by creating doctrines later codified by Congress, such as the first sale doctrine.

It may sound odd, to our modern ears, that the framers identified the purpose of copyright as promoting the progress of 'Science.'

• The United States Copyright Office operates within the legislative branch as a department of the Library of Congress.
• The Office is primarily responsible for registering copyright claims and maintaining official records of ownership transfers.
• The Register of Copyrights holds limited regulatory authority subject to the approval of the Librarian of Congress.
• Constitutional questions have been raised regarding the regulatory authority granted to an entity within the legislative branch.
• The Compendium of Copyright Office Practices guides administrative functions but does not possess the independent force of law.
• International treaties and the American Law Institute's Restatement also heavily influence the framework of U.S. copyright law.

We note that some have questioned the constitutional basis for any regulatory authority granted by Congress to this entity, which itself is a branch of Congress.

• The American Law Institute approved the final portion of its influential Restatement of Copyright in 2025.
• For its first century, U.S. copyright law deliberately excluded foreign authors to allow cheap domestic printing.
• The Copyright Act of 1891 shifted policy by extending protection to foreign authors under specific reciprocal conditions.
• Early U.S. law imposed strict domestic manufacturing clauses and formalities that kept the nation out of international treaties.
• As the United States became a cultural exporter, it reformed its laws to finally join the Berne Convention in 1988.

During this period, U.S. policy was frankly mercantilist; the United States, as compared with Europe, was not a significant producer of new works of authorship, and it suited American interests to have cheap foreign books readily available.

• The United States joined the EU and Japan to strengthen international IP through the WTO's 1994 Uruguay Round.
• The TRIPS Agreement established minimum global standards for patents, copyrights, and trademarks.
• TRIPS gave enforcement teeth to the Berne Convention by linking it to WTO dispute resolution mechanisms.
• U.S. copyright law traces its origins to early English history, specifically the Statute of Anne of 1710.
• The invention of the printing press necessitated legal frameworks to control mass copying and publishing.

Truth and understanding are not such wares as to be monopoliz’d and traded in by tickets and statutes, and standards.

• Attempts to regulate printing imply an impossible need to control all human recreations, music, and social expression.
• When the Stationers' monopoly lapsed in the 1690s, publishers shifted their strategy to advocate for author rights that they could acquire.
• The Statute of Anne in 1710 granted fixed-term rights to authors rather than perpetual monopolies to publishers.
• The House of Lords later confirmed in Donaldson v. Becket that copyrights must respect these strict durational limits.
• The Statute of Anne directly influenced the U.S. Constitution's Copyright Clause and the foundational U.S. Copyright Act of 1790.

And who shall silence all the airs and madrigalls, that whisper softnes in chambers?

• Early litigants argued that statutory copyright merely supplemented a perpetual common law right, but this claim was firmly rejected by the U.S. Supreme Court.
• In Wheaton v. Peters, the Court established that published works are governed exclusively by federal statutory law rather than common law.
• While authors deserve the fruits of their labor, enjoying those fruits after publication depends strictly on statutory rules and property regulations.
• Over the century following the 1790 Act, Congress systematically expanded copyrightable subject matter to include maps, music, photography, and fine art.
• Major legislative overhauls in 1909 and subsequent decades progressively broadened protected categories to encompass motion pictures and sound recordings.

That every man is entitled to the fruits of his own labour must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things in general.

• The Copyright Act of 1976 aimed to modernize legal frameworks by moving away from rigid subject matter categories found in older laws.
• Section 102(a) established seven broad, non-exhaustive categories of copyrightable works to encompass a wide array of artistic expression.
• The broad statutory definitions successfully accommodated technological advancements like digital audio and DVDs without requiring constant legislative amendments.
• Congress has expanded the core list of categories only once since 1976, adding architectural works in 1990.
• Subsequent legislation like the DMCA and the Music Modernization Act have further shaped modern copyright administration and enforcement.
• Constitutional provisions link copyright authority directly to the utilitarian purpose of promoting the progress of science.

Because of the generality of the language that the 1976 Act uses to define categories of subject matter, Congress has avoided the need—at least in many instances—to amend the 1976 Act to account for new technologies.

• The primary U.S. justification for copyright is utilitarian, arguing that financial incentives are necessary to prevent copyists from underpricing creators and destroying the motivation to produce new works.
• Despite the logical appeal of this economic theory, empirical evidence linking copyright directly to creative incentives remains surprisingly sparse and less established than expected.
• Many scholars suggest that intrinsic motivation drives people to create works even in the complete absence of copyright incentives.
• A growing academic subgenre known as the 'negative space' literature documents numerous industries—such as fashion, cuisine, and stand-up comedy—where creative production thrives without formal intellectual property protection.
• It remains uncertain whether these unprotected industries reflect the broader range of cultural subject matter traditionally shielded by copyright law, such as books, music, and movies.
• Alternative utilitarian variants, like the democratic paradigm, view copyright as a tool for recruiting market institutions to foster a democratic civil society.

That is a sensible story. But is it true? On that question, we have little evidence.

• The text provides a comprehensive set of scholarly citations exploring intellectual property across diverse fields like fashion, food, comedy, and digital media.
• Copyright law functions as an engine of free expression, encouraging new speech and limiting reliance on state patronage.
• The first democracy-enhancing function of copyright is production, providing incentives for creative expression on various issues.
• The second democracy-enhancing function is structural, supporting creative activity independent of state subsidies and elite patronage.
• These mechanisms bolster the discursive foundations necessary for a healthy democratic culture and civic association.

Copyright serves two democracy-enhancing functions.

• The US Constitution mandates that copyright protections must endure only for limited times.
• Physical property like laptops is rivalrous and scarce, requiring property rights to manage access.
• Artistic and literary works are non-rivalrous, meaning consumption by one person does not prevent another from enjoying it.
• Because non-rivalrous goods do not face natural scarcity, resource allocation justifications for property rights fail.
• Instead of managing scarcity, the utilitarian justification for copyright is to provide adequate incentives for initial creation.
• Unlike perpetual property rights for scarce goods, copyright does not need to last forever to fulfill its incentive purpose.

If I teach you a song I know, I still know the song, and now you know it as well.

• Copyright rights should theoretically endure only long enough for creators to recover enough revenue to make creation worthwhile.
• Determining an optimal copyright term is empirically difficult because we lack precise data on creator incentives and consumer preferences.
• Increasing copyright terms and scope may yield more works, but it also creates significant economic and societal costs.
• Monopoly pricing leads to income transfer from consumers to owners, societal deadweight loss, and barriers to follow-on creators.
• Thomas Macaulay famously described copyright as a tax on readers for the purpose of giving a bounty to writers.
• The ultimate goal of copyright law is not maximal protection, but rather an optimal balance that weighs benefits against costs.

copyright, Macaulay said, is “a tax on readers for the purpose of giving a bounty to writers.”

• Some scholars argue that copyright acts as a tool for promoting equality and distributive justice.
• Conversely, others suggest that the psychological conditions of poverty render intellectual property ineffective for encouraging creativity among the poor.
• Beyond utilitarian incentives, rights-based deontic justifications provide alternative frameworks for copyright law.
• Locke's labor theory suggests that an individual's contribution of labor creates a natural property right in the product.
• Locke's fairness-based framework is anchored by a strong no-harm injunction and constrained by specific provisos regarding waste and leaving enough for others.

Locke’s theory identifies the individual’s contribution of labor as the mechanism by which objects are reduced to property, and it focuses on the harm—in terms of fairness rather than wealth maximization—when another deprives the owner of the fruits of that labor.

• Every individual possesses an exclusive property in their own person and physical labor.
• When a person mixes their labor with natural resources, they remove them from the common state.
• This act of labor annexes something to the resource, thereby excluding the common rights of other men.
• Appropriation through labor is evident when gathering natural goods like acorns or apples for nourishment.
• Requiring the universal consent of all mankind to appropriate resources would have resulted in human starvation despite natural abundance.

If such a consent as that was necessary, Man had starved, notwithstanding the Plenty God had given him.

• John Locke argued that property rights originate from mixing one's labor with resources from the commons, bounded by limits against waste and requirements to leave enough for others.
• By analogy, Lockean labor theory is often applied to justify property rights in creative expression, treating common-stock facts and ideas as the raw materials.
• Scholars suggest that intellectual property easily satisfies Locke's provisos because ideas are virtually limitless and works can always be licensed or exploited to prevent waste.
• A critical distinction arises because tangible property is rivalrous, whereas intangible creative expression is non-rivalrous and can be accessed without depriving the owner of the physical item.
• Although unauthorized consumption of intellectual property does not physically dispossess the owner, it may still cause unfairness by depriving them of financial profits.

A critical difference between tangible items and intangible ones, like creative expression, raises some questions about applying the Lockean framework to creative expression.

• Lockean and utilitarian analyses of copyright share a deeper connection concerning incentives and fairness.
• A second deontic justification for copyright stems from the Hegelian and Kantian personality theories.
• This personality theory argues that original expression embodies an author's unique personality and autonomy.
• Property rights provide a mechanism for self-definition, personal expression, and societal recognition of dignity.
• Western culture's Romantic conception of authorship creates a strong link between creators and their expression.
• Despite its appeal, personality theory lacks a built-in mechanism for reconciling disputes at a practical level.

In a consumer society, we are (in part) what we own.

• Personality theories struggle to resolve competing claims when a second creator adapts an original copyrighted work.
• Utilitarian frameworks can be broadened to incorporate labor and personality theories by recognizing the value of expressive incentives.
• Creators attach deep significance to their labor and personhood, meaning that protecting these interests strengthens the incentive to create.
• Labor and personality theories strongly influence European copyright systems while also informing discussions within U.S. law.
• Section 102 of the Copyright Act establishes the core subject matter of copyright, outlining requirements like fixation and originality.

The Hegelian/Kantian justification offers no guidance for how property rights must be distributed in such an instance.

• Copyright protection excludes abstract ideas, procedures, and discoveries, regardless of how they are embodied.
• Section 102 mandates that works must be fixed in a tangible medium of expression to receive protection.
• Constitutional interpretation strongly implies that a Writing must be a physical rendering of creative labor.
• Fixation promotes cultural dissemination by ensuring works are preserved rather than remaining ephemeral.
• The requirement serves an evidentiary function, making it easier to resolve potential infringement disputes.
• Fixation clearly delineates protected expression from unprotected underlying ideas.

An unrecorded performance, for example, is unlikely to be retained other than in the memories of the audience that was there to see it at that moment.

• A work is considered fixed when embodied in a copy or phonorecord with sufficient permanence to be perceived or communicated.
• Fixation must last for a period of more than transitory duration under statutory definitions.
• Historical legal definitions trace back to significant Supreme Court cases involving emerging technologies.
• In 1908, the Supreme Court evaluated whether player piano rolls constituted legal copies of musical compositions.
• The White-Smith Music Publishing Co. v. Apollo Co. case tested the boundaries of copyright infringement for mechanical music devices.

In 1908, the U.S. Supreme Court considered in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, whether a player piano roll represented a copy of a musical composition.

• The Supreme Court ruled in White-Smith that piano rolls were not copyright copies because humans could not directly read them.
• The Court dismissed the argument that these perforated rolls produced musical tones when operated by a machine.
• This decision meant that copiers could bypass copyright protections by using machine-unreadable formats.
• Congress eventually overhauled copyright law in 1976 to overrule the White-Smith decision.
• The 1976 Act established that works are fixed if they can be perceived directly or with the aid of a machine.
• Congress intended this broader definition of fixation to encompass both existing and future technological formats.

As a functional matter, White-Smith meant that copiers could circumvent copyright protections by creating copies of a work that were unreadable by humans, but could be made comprehensible with the aid of a machine.

• Copyright law traditionally requires works to be fixed for a period of more than transitory duration to receive protection.
• Congress created an exception for live broadcasts by considering them fixed if recorded simultaneously with their transmission.
• The rapid development of digital technologies, particularly video games, created unforeseen legal complications regarding fixation.
• Williams Electronics manufactured the DEFENDER video game, utilizing ROM chips to store instructions that generate interactive audiovisual displays.
• Williams successfully secured three separate copyright registrations covering the computer program, attract mode, and play mode.
• Player participation introduces unique challenges in determining the exact nature and fixation of copyrightable video game elements.

Congress thought it had resolved a complicated area with its new rules for fixation, but as new technologies developed—and particularly digital technologies—unforeseen complications arose.

• Artic International sold circuit board kits that produced audiovisual effects virtually identical to Williams' DEFENDER game.
• The district court found that Artic infringed both Williams' computer program copyright and its audiovisual copyrights.
• Artic appealed by challenging the validity and scope of the copyrights, specifically arguing a lack of fixation.
• Artic claimed that video game images are transient and recreated anew each time, failing the statutory fixation requirement.
• The court rejected this argument, ruling that permanent embodiment in memory devices satisfies the fixation requirement because the audiovisual features repeat stably.
• The court also dismissed the idea that player participation makes the player a co-author or voids copyright protection.

Specifically, it contends that there is a lack of “fixation” because the video game generates or creates “new” images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical or substantially identical to the earlier ones.

• Cablevision proposed a Remote Storage DVR system that allows customers to record programs on centrally maintained hard drives.
• Copyright holders sued Cablevision, alleging that the RS-DVR system would directly infringe their reproduction and public performance rights.
• The case highlights the legal tension between traditional statutory fixation requirements and transient digital or electronic reproductions.
• Modern digital technologies like cloud-based DVRs complicate how the law defines the duration required for a work to be fixed.
• Cablevision did not seek licenses from content providers before announcing its plans to offer the RS-DVR service.

Can you square this understanding of fixation with the decision in this case?

• Cablevision splits television content streams into two paths, directing one to customers and the other into the Broadband Media Router and Arroyo Server.
• The primary ingest buffer and BMR buffer temporarily hold television data streams for fractions of a second before automatically erasing them.
• Data for programs requested by customers are moved from the primary buffer to a secondary buffer and finally onto dedicated hard disk space.
• The user experience of the RS-DVR closely mirrors a standard set-top DVR, though the control signals are sent directly to Cablevision's central facility.
• The district court evaluated whether the temporary buffer data meet the Copyright Act's definition of being fixed copies.
• Legal analysis focuses on whether the transient storage in buffers satisfies the Copyright Act requirements of embodiment and duration.

The primary ingest buffer holds no more than 0.1 seconds of each channel’s programming at any moment.

• The district court erred by focusing solely on the embodiment requirement while ignoring the duration requirement for fixation.
• Precedent cases like MAI Systems assumed fixation in RAM without directly analyzing the legal meaning of transitory duration.
• Loading a program into RAM can create a copy, but it does not establish a blanket rule that RAM storage always constitutes a copy.
• Ignoring the duration requirement would effectively read statutory language out of the copyright definition.
• Data in the buffers meets embodiment standards because it can be perceived, reproduced, or communicated.

Such a holding would read the “transitory duration” language out of the definition, and we do not believe our sister circuit would dismiss this statutory language without even discussing it….

• Computer programs must be transferred from storage to RAM for processing.
• Data residing in buffers for a fleeting 1.2 seconds before being overwritten fails the statutory duration requirement.
• Plaintiffs argued duration is not transitory because data persists long enough to make reproductions.
• The court rejected the plaintiffs' reasoning, concluding that buffering does not create statutory copies.
• Related legal questions explore whether tattoos on human bodies or ephemeral digital messages qualify as fixed works.

No bit of data remains in any buffer for more than a fleeting 1.2 seconds.

• Courts have previously debated whether perishable items like a bowl of food can be considered legally fixed under copyright law.
• The Restatement of Copyright suggests fixation requires an embodiment lasting long enough to permit the enjoyment or exploitation of a work's expressive content.
• This temporal standard supports the statute's goals by ensuring works can be reliably identified and communicated over time.
• The Uruguay Round Agreements Act provides copyright-like protections against unauthorized bootlegs of live, unfixed musical performances.
• Courts have consistently upheld the constitutionality of protecting unfixed works by relying on Congress's authority under the Commerce Clause.

a bowl of perishable food will, by its terms, ultimately perish

• Section 102 protects original works of authorship, but the statute leaves this term undefined.
• Legislative history indicates that the standard of originality incorporates prior judicial interpretations under the 1909 Act.
• The standard explicitly excludes requirements of novelty, ingenuity, or esthetic merit.
• Because Congress provided little guidance, courts have defined originality by looking to the U.S. Constitution.
• Classic pre-1976 cases establish the foundational standards of originality before later Supreme Court rulings.

This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.

• The constitutional debate centers on whether photographs qualify as 'writings' by 'authors' under Article I, Section 8 of the Constitution.
• Critics argue that photographs are merely mechanical reproductions of natural objects or persons rather than original creative works.
• Historical precedent from the First Congress in 1790 and subsequent 1802 acts extended copyright protections to maps, charts, and prints.
• Early congressional interpretations by framers of the Constitution carry significant weight in establishing the broad scope of protected works.
• The legal definition of 'writing' and 'author' has historically expanded to encompass various visual and printed mediums that express an author's ideas.
• Photographs were likely omitted from early copyright statutes simply because the medium and its underlying technology had not yet been invented.

The only reason why photographs were not included in the extended list in the act of 1802 is, probably, that they did not exist, as photography, as an art, was then unknown...

• The Constitution is broad enough to cover acts authorizing the copyright of photographs representing original intellectual conceptions.
• Critics argue that ordinary photographs are merely mechanical reproductions lacking the novelty, invention, or originality required for copyright.
• While chemical and mechanical processes of photography may be patentable, the physical transfer of an image has traditionally been seen as a simple manual operation.
• In the specific case of Sarony's photograph of Oscar Wilde, the creator's original mental conception and artistic arrangements elevated the work.
• Because the photographer directed the posing, costumes, lighting, and expressions, the resulting image qualified as an original work of art protected by statute.

It is simply the manual operation, by the use of these instruments and preparations, of transferring to the plate the visible representation of some existing object, the accuracy of this representation being its highest merit.

• The lower courts initially ruled that Bleistein's circus chromolithographs lacked copyright protection.
• The plaintiff's posters were protected despite depicting real-world subjects and performances.
• A unique artistic creation remains protected even if it is drawn from life or actual events.
• Personal expression and singularity give even modest art an irreducible, copyrightable quality.
• The law protects pictorial illustrations regardless of whether they are used commercially for advertising.

Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.

• Legal judges should not act as final arbiters of artistic worth or pictorial illustration quality.
• Works of genius or novelty might be rejected if judges rely solely on their own personal aesthetic standards.
• The legal definition of original in copyright requires only that a work owes its origin to the author without needing startling novelty.
• A trivial variation or something recognizably the author's own is enough to satisfy constitutional and statutory standards.
• Reproductions of public domain works, such as mezzotint engravings, can be validly copyrighted if they constitute an original version.

Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.

• Engravers can create original works requiring great skill and judgment despite copying an original painting.
• Unintentional variations caused by physical limitations or accidents can still yield valid copyright protection.
• Justice Holmes's Bleistein nondiscrimination principle asserts that copyright law should avoid making aesthetic worth judgments.
• Recent Supreme Court rulings clarify that courts must avoid evaluating artistic significance while still perceiving a work's meaning.
• Scholars debate whether the copyright statute truly encodes an objective nondiscrimination principle or if aesthetic judgments are unavoidable.

A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations.

• The text examines how different legal foci on creation impact the assessment of a work's originality.
• It introduces the landmark Supreme Court case Feist Publications, Inc. v. Rural Telephone Service Co.
• Rural Telephone Service Co. is a regulated monopoly that publishes a free annual telephone directory in Kansas.
• Feist Publications sought to create a broader area-wide directory and acquired listings from multiple local companies.
• Rural was the only company to refuse licensing its white pages to Feist, creating a significant compilation challenge.
• The section questions how this Supreme Court decision affects prior copyright law and underlying theoretical justifications.

Rural’s refusal created a problem for Feist, as omitting these listings would have left a gaping hole in its area-wide directory ….

• Feist used Rural's white pages listings without consent after failing to license them, leading to a copyright infringement lawsuit.
• The fundamental requirement for copyright protection is originality, meaning a work must be independently created and possess a minimal degree of creativity.
• Originality is a constitutional requirement rooted in Article I of the Constitution, which presupposes a degree of creativity by authors.
• Facts themselves cannot be copyrighted because they are discovered rather than created by an act of authorship.
• Factual compilations may receive copyright protection if the selection and arrangement of the data entail a minimal degree of independent creativity.

No one may claim originality as to facts.

• Factual compilations receive thin copyright protection limited strictly to original selection and arrangement.
• Raw facts themselves remain unprotected and may be freely copied by subsequent compilers.
• The primary constitutional objective of copyright is to promote the progress of science and useful arts rather than to reward authorial labor.
• The flawed sweat of the brow doctrine incorrectly rewarded hard work rather than focusing on the required element of originality.
• Copyright law treats facts consistently by ensuring protection never extends to the underlying facts of a compilation.

It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation…. [H]owever, this is not some unforeseen byproduct of a statutory scheme.

• Judge Hand posited that an independent creation of Keats's poem would deserve its own copyright, highlighting the theoretical nature of independent creation.
• Copyright law requires only a minimal level of creativity, contrasting sharply with the higher standards of novelty and nonobviousness required in patent law.
• Legal scholars are divided on whether raising copyright's low creativity threshold would encourage higher quality works or if it would improperly invite subjective aesthetic assessments.
• Some empirical studies suggest that extrinsic incentives can actually decrease creative output, while specific intellectual property experiments indicate that higher thresholds increase work quality.
• The fundamental debate questions whether intellectual property goals are better served by encouraging a high volume of works or by demanding greater aesthetic progress.

There is also empirical work that suggests that providing extrinsic incentives to people to act creatively counterproductively makes them less likely to produce creative works than those without such incentives.

• Copyright law protects creative expression while explicitly excluding facts from such protection.
• Maps and charts present a unique legal challenge regarding whether they represent purely facts or protectable elements.
• The distinction between copyrightable expression and unprotectable facts in cartography is a subject of ongoing legal scholarship.
• Historical contexts, such as colonial Australia, highlight the evolving nature of cartographic copyright law.
• The legal framework governing visual works and digital models further tests the boundaries of copyright subject matter.

protects certain forms of creative expression, but does not protect facts.

• Toyota and its advertising agency sought digital models of vehicles for flexibility in marketing campaigns compared to traditional photography.
• Meshwerks was hired as a subcontractor to digitize physical vehicles by taking copious measurements using a grid of tape and an articulated arm.
• Meshwerks personnel manually sculpted the wire-frame models, claiming that about 90 percent of final data points resulted from this manual effort.
• Certain features like wheels and headlights could not be measured and required realistic recreation by hand based on photographs.
• Once the unadorned wire frames were completed, another contractor added color, texture, lighting, and animation for Toyota's advertisements.

Approximately 90 percent of the data points contained in each final model, Meshwerks represents, were the result not of the first-step measurement process, but of the skill and effort its digital sculptors manually expended at the second step.

• Meshwerks sued Toyota and G & W for copyright infringement over the unauthorized reuse of digital wire-frame models in multiple advertisements beyond their single-use contract.
• The defendants moved for summary judgment, arguing that Meshwerks' models lacked sufficient originality to warrant copyright protection.
• Defendants contended that any original expression originated from the Toyota designers who initially conceived the vehicle designs.
• The district court agreed with the defendants' argument, leading to a focus on whether the models are independent creations or mere copies.
• The court explored how traditional copyright doctrine, particularly regarding photography, applies to modern digital media and virtual worlds.
• Ultimately, the court concluded that Meshwerks' models function as high-quality copies of Toyota's vehicles rather than independent copyrightable creations.

And how might that doctrine apply in an age of virtual worlds and digital media that seek to mimic the “real” world, but often do so in ways that undoubtedly qualify as (highly) original?

• Digital mediums can create new expressions that are fully protectable by copyright.
• Meshwerks created digital wire-frame models depicting unadorned Toyota vehicles without individualizing features.
• Works are not copyrightable if they do not involve expression apart from raw facts, similar to photographs of pre-existing products.
• Meshwerks made no creative decisions regarding lighting, shading, background, or angle.
• The unadorned digital models of Toyota vehicles contain no original expression and cannot be copyrighted.
• Meshwerks simply copied Toyota's pre-existing vehicle designs and played a narrow role in the creation process.

Meshwerks’ models depict nothing more than unadorned Toyota vehicles—the car as car.

• Meshwerks translated physical Toyota vehicles into a digital medium to allow expressive manipulation.
• Copyright law rests on the bedrock principle that protected works must be independently created by the author.
• A copier is not an independent creator, and copyright protection is explicitly refused to copies.
• Meshwerks performed a peculiar kind of copying by depicting three-dimensional objects in a two-dimensional digital space.
• Shifting a work from one medium to another does not render it any less a copy under the law.

It did not seek to recreate Toyota vehicles outright—steel, rubber, and all; instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.

• Copyright assessment focuses exclusively on the final product rather than the labor, time, or skill invested in the creation process.
• An artist's intent to faithfully copy an existing object rather than create an original work makes the final product far less likely to be considered original.
• Meshwerks intended to digitize and model unadorned replicas of Toyota vehicles as base layers rather than add independent creative expression.
• While digital modeling as a medium is capable of producing copyrightable expressions, not every digital model automatically qualifies for protection.
• Just like photographs, digital models require unique elements like shading, lighting, or angles to meet the threshold of copyrightability.

If an artist affirmatively sets out to be unoriginal—to make a copy of someone else’s creation, rather than to create an original work—it is far more likely that the resultant product will, in fact, be unoriginal.

• The text questions the originality of Marcel Duchamp’s readymade art piece Fountain.
• It examines how wildlife photographs like Thomas Mangelsen's achieve originality compared to historical legal precedents.
• The Copyright Office frequently denies registration to business logos and simple phrases due to a lack of required creativity.
• Certain courts have occasionally disagreed with the Copyright Office, ruling that short lyrical phrases can sometimes be copyrightable.
• Derivative works and compilations are defined as forms of authorship that transform or assemble preexisting materials into new protected works.

Consider Marcel Duchamp’s Fountain in Figure 8, which is made up of a pre-existing porcelain urinal that he signed “R. Mutt.”

• Section 103(a) of the Copyright Act protects derivative works and compilations unless they unlawfully incorporate preexisting material.
• Section 103(b) clarifies that copyright in derivative works extends only to the newly contributed material and does not affect rights in underlying works.
• Derivative works and compilations raise unique questions regarding their copyrightability and the required standard of originality.
• The statute itself remains silent on the specific threshold of originality needed for a derivative work compared to an original work.
• Case law, such as the Uncle Sam mechanical bank dispute, helps define how much new content a second comer must add to gain protection.

The statute says nothing about the threshold of originality required of a derivative work, as compared with the underlying original work.

• Snyder traveled to Hong Kong to commission a plastic, scaled-down replica of a historic cast-metal Uncle Sam mechanical bank for Bicentennial distribution.
• Modifications were made to the original design, including size reduction, a merged umbrella mold, and altered base dimensions to meet cost and manufacturing constraints.
• A competitor, Batlin, subsequently ordered similar plastic copies from Taiwan after observing Snyder's version.
• The United States Customs Service blocked Batlin's plastic and cast-iron bank imports based on Snyder's claimed copyright, prompting Batlin to sue for a declaration that the copyright was void.
• The court examined both versions, noting subtle differences such as material texture, carpetbag shape, and a substitution of leaves for arrows due to plastic manufacturing limitations.

Thus Batlin instituted suit for a judgment declaring appellants’ copyright void.

• The plastic version of the bank exhibits subtle texture and structural differences compared to the original cast iron piece.
• Despite variations in size, materials, and minor details, the overall design and iconography remain remarkably similar.
• The modifications in the plastic bank are deemed trivial and driven purely by manufacturing constraints rather than creative choices.
• Copyright protection fundamentally requires that a work be the original product of its claimant rather than a mechanical copy.
• Individuals who slavishly or mechanically copy existing works fail to qualify as authors under constitutional standards.

What the leading authority has called “the one pervading element prerequisite to copyright protection regardless of the form of the work” is the requirement of originality that the work be the original product of the claimant.

• A work of art must contain substantial, non-trivial originality to qualify for copyright protection.
• Merely copying a public domain work fails to secure a copyright, though a distinguishable variation may succeed.
• Copyright law inherently requires a minimal element of creativity that goes beyond mere independent effort.
• Reproductions of underlying works, including public domain art and commercial objects, require an original contribution from the reproducer.
• Translating a work to a different medium or demonstrating mere physical skill and training is insufficient to satisfy the originality requirement.

Nor can the requirement of originality be satisfied simply by the demonstration of physical skill or special training which, to be sure, … was required for the production of the plastic molds that furnished the basis for appellants’ plastic bank.

• The appellants argued that their plastic mold sculpture of an Uncle Sam bank demonstrated sufficient artistic effort to warrant copyright protection.
• The court evaluated the precedent set by the 'Hand of God' case, which involved an extraordinarily complex scale reduction of a Rodin sculpture requiring immense skill.
• Unlike the Rodin reproduction, the plastic bank contained trivial deviations, lacked meticulous exactitude, and provided no significant public benefit.
• The court concluded that the plastic replica falls into a copyright no-man's land because it lacks both exactitude and substantial originality.
• Extending copyright protection to minuscule variations would merely arm copiers with tools to monopolize public domain works.

Thus appellants’ plastic bank is neither in the category of exactitude required by Alva Studios nor in a category of substantial originality; it falls within what has been suggested by the amicus curiae is a copyright no-man’s land.

• Courts evaluate whether scale reproductions like Rodin sculpture replicas possess sufficient skill and originality to warrant copyright protection.
• Legal precedents emphasize that exact scale reductions require significant artistic effort and technical craftsmanship.
• Daniel Schrock was hired to photograph Thomas & Friends toys for promotional materials under paid invoices totaling over $400,000.
• Schrock later sued for copyright infringement when the companies continued using his product photographs after their business relationship ended.
• The defendants argued that Schrock's photographs lacked sufficient originality as derivative works and were created without copyright authorization.

great skill and originality is called for when one seeks to produce a scale reduction of a great work with exactitude.

• The district court previously granted summary judgment for defendants, concluding that Schrock's photographs were derivative works lacking independent copyright permission.
• Schrock appealed this decision, arguing his photos contained sufficient original expression and that he had proper authorization to create them.
• Defendants countered by defending the derivative work classification, questioning the photos' originality, and alleging an oral unlimited license.
• The appellate court noted that the Copyright Act grants protection to the incremental original expression contributed by a derivative author.
• Courts and commentators remain deeply divided on whether photographs of copyrighted works inherently constitute derivative works.
• The appellate court ultimately chose to assume the photos were derivative works without definitively resolving the debate, as it did not alter the core copyrightability standard.

Whether photographs of a copyrighted work are derivative works is the subject of deep disagreement among courts and commentators alike.

• Schrock's photographs of toys are not slavish copies because his artistic and technical choices reflect independently created expression.
• Schrock used camera and lighting techniques to make the toys look more lifelike and personable.
• The utilitarian function of identifying products for consumers is legally irrelevant to the copyright analysis.
• Derivative works are argued to be subject to a higher standard of originality, though leading commentators disagree.
• The Nimmer treatise maintains that derivative works require only a nontrivial variation sufficient to render them distinguishable from prior works.
• The defendants invoke the Gracen decision to demand a more rigorous standard of originality for derivative works.

He explained how he used various camera and lighting techniques to make the toys look more “life like,” “personable,” and “friendly.”

• The Gracen case highlights the difficulty of separating original elements when derivative works closely resemble the underlying work.
• A hypothetical involving artists painting the Mona Lisa illustrates how slight variations make infringement hard to prove.
• Judges and juries would struggle to determine if a subsequent artist copied a previous derivative work or the public domain original.
• A mere shift in medium generally fails to satisfy the legal requirement for originality in a derivative work.

[I]f the difference between the original and A’s reproduction is slight, the difference between A’s and B’s reproductions will also be slight, so that if B had access to A’s reproductions the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself.

• Derivative works do not require a more exacting standard of originality than other works of authorship under the Copyright Act.
• The primary inquiry for a derivative work is whether it contains sufficient nontrivial expressive variation to be meaningfully distinguishable from the underlying work.
• Copyright protection for derivative works is thin, extending only to the incremental original expression contributed by the author.
• Photographs of copyrighted toys qualify for derivative copyright if they contain minimally sufficient variation in angle, perspective, lighting, and dimension.
• The Copyright Act does not require the author of a derivative work to obtain permission to copyright their work, as copyright arises by operation of law upon fixation.
• While copyright vests initially in the author, the owner of an underlying work can limit derivative-work rights through contract, license, or agreement.

Schrock’s photos of the “Thomas & Friends” toys are highly accurate product photos but contain minimally sufficient variation in angle, perspective, lighting, and dimension to be distinguishable from the underlying works; they are not slavish copies.

• The legal record regarding whether photographs qualify as derivative works remains ambiguous.
• Courts explore copyright standards through examples such as paintings based on film stills.
• Derivative work rights raise questions about whether ownership belongs to the original or subsequent creator.
• The statute remains silent on the specific threshold of originality required for compilations.
• Originality serves as the essential prerequisite for copyright protection in any work.
• Copyright protection for compilations extends only to original expressions rather than underlying facts.

Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.

• Copyright protection for factual compilations applies only to the original selection and arrangement of facts, not to the facts themselves.
• This limitation results in a thin copyright, allowing subsequent compilers to use the underlying facts in competing works.
• Under Section 101 of the 1976 Act, a compilation must meet a tripartite structure including assembly, arrangement, and original authorship.
• The originality requirement prevents courts from rewarding mere industrious effort, historically known as the sweat of the brow doctrine.
• Originality for compilations requires independent creation and a minimal level of creativity, though novelty is not strictly necessary.

There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.

• Copyright protects original authorship in compilations but explicitly excludes underlying facts or data from protection.
• The facts contained in existing works, such as names and phone numbers, may be freely copied by others.
• Feist copied a substantial amount of factual information, specifically 1,309 names, towns, and telephone numbers from Rural's directory.
• Raw data does not satisfy the legal originality requirement because it exists independently of the compiler's efforts.
• Arranging names alphabetically in a standard directory is a routine, inevitable practice that lacks the minimal creative spark required for copyright.

Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not “ow[e] its origin” to Rural.

• Several proposed US bills attempting to protect noncreative databases failed to pass into law due to constitutional limitations.
• Congressional authority for such legislation was often tied to the Commerce Clause because the Copyright and Patent Clause was deemed inapplicable by Feist.
• In contrast to the United States, the European Union adopted a Database Directive in 1996 to protect substantial investments in database creation.
• Trade secret laws, including the 2006 Defend Trade Secrets Act, offer alternative federal protections for certain maintained databases.
• A 2005 European Union study concluded that the economic impact of database protection was unproven and failed to stimulate production.
• Data showed that while North American database production grew without specific protection laws, the European Union's global market share stagnated.

In other words, the implementation of the new protection against copying correlated with a decline in production, not an increase.

• West Publishing has faced conflicting judicial rulings over whether its star pagination deserves copyright protection following the Feist decision.
• Courts have evaluated whether distinct elements like text and artwork in greeting cards can be protected individually or collectively as original compilations.
• Real estate ownership maps compiled from various public and private records raise questions about what constitutes sufficient originality for copyright protection.
• The Copyright Office generally refuses to register compilations containing only two or three elements because the selection is considered de minimis.
• Statutory definitions of compilations and collective works are compared against legislative history and administrative rules to test policy consistency.

Considering all of these elements together, th[is] card[ is] … both original and copyrightable.

• Courts evaluate whether compilations of data possess the minimal creativity required for copyright protection.
• The Sixth Circuit held that a transmission parts catalog lacked creativity because it included every available part and used inevitable arrangements.
• Conversely, the Second Circuit found originality in a used car guide where logical choices were used to solve market presentation problems.
• Section 102(b) establishes the idea-expression distinction, excluding ideas, procedures, and systems from copyright protection.
• While unprotectable ideas and systems cannot be copyrighted, the specific expression of those ideas remains fully protected under the law.

the fact that an arrangement of data responds logically to the needs of the market for which the compilation was prepared does not negate originality.

• Copyright law denies protection to fundamental ideas, facts, and processes to keep them freely accessible in the public domain.
• Granting exclusive rights to basic building blocks of expression would be inefficient, unfair, and ultimately detrimental to creativity.
• The historical case of Baker v. Selden serves as a foundational precedent concerning the boundaries of copyright protection for systems and methods.
• Charles Selden sought to protect a specialized book-keeping system presented through an explanatory essay and accompanying blank forms.
• While the defendant Baker used a similar plan with different column arrangements, the core legal question centers on whether such systems are copyrightable.

It would be both inefficient and unfair to grant rights in these basic components that so many authors will need just because one person happened to employ them first.

• The core legal question is whether copyrighting a descriptive book grants an exclusive right to the underlying system it explains.
• The defendant is accused of using the same bookkeeping system illustrated in the complainant's copyrighted work.
• Truths of science and methods of art are considered common property belonging to the whole world.
• An author has the right to explain a system in their own way, but others may use the system without violating the explanatory book's copyright.
• The complainant argues that using the exact ruled lines and headings necessary for the system constitutes copyright infringement.
• Ultimately, the case hinges on whether a monopoly over a practical system can be legally claimed through a mere book explanation.

Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way.

• A descriptive book about book-keeping or any other art can be copyrighted as a literary work.
• There is a fundamental legal distinction between an explanatory book and the actual art or manufacture it describes.
• Copyright protects the author's written expression regardless of whether the underlying subject matter is novel.
• Granting exclusive rights to an art through mere copyright without official novelty examination would defraud the public.
• Patents, not copyrights, are the proper legal mechanism for securing exclusive rights to an invention, discovery, or manufacture.

To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public.

• Publishing a book on an art or science without a patent dedicates that art to the public use.
• Illustrations and diagrams in instructional books serve as a language to convey ideas rather than protected exclusive methods.
• The fundamental purpose of publishing scientific and useful arts books is to communicate knowledge for practical application.
• Ornamental designs and pictorial illustrations differ because their form is their essence and final end.
• While copying a book's text or illustrations to teach the art infringes copyright, practicing the described art itself remains entirely free to the public.
• Confusing the publication of a book with the actual practice of the art it describes creates false claims of copyright infringement.

The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains.

• Illustrations and diagrams in a descriptive book may closely resemble the actual work performed, yet they do not grant an exclusive right to the underlying art or process itself.
• The primary objective of a copyrighted book is explanation, whereas the objective of the described art or system is use.
• Blank account books and similar utilitarian forms are excluded from copyright protection under the blank form doctrine.
• The Ninth Circuit held that a yoga sequence, functioning as a system or healing art, cannot be monopolized through copyright law.
• The aesthetic beauty or grace inherent in performing a process does not transform that process into copyrightable subject matter.

The performance of many ideas, systems, or processes may be beautiful: a surgeon’s intricate movements, a book-keeper’s careful notations, or a baker’s kneading might each possess a certain grace for at least some viewers.

• In Morrissey v. Proctor & Gamble Co., the plaintiff sued for copyright infringement over sweepstakes rules.
• Although the court found original expression in the rules, it denied copyright protection under the merger doctrine.
• The merger doctrine applies when there are limited ways to express an idea, causing the idea and expression to merge.
• Protecting such expressions would effectively grant a monopoly over the underlying idea, which copyright law prohibits.
• Some courts offer 'thin protection' in these cases, prohibiting only exact or near-exact copying rather than denying protection entirely.

When there is one form of expression, [or] at best only a limited number [of ways to express an idea or system], to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.

• ATC Distribution Group sued its former employee Kenny Hester and his new company WITT for copyright infringement.
• Hester left ATC and formed a competing transmission parts company, taking several employees and utilizing ATC's catalog design.
• ATC's catalog and numbering system were based on an earlier print distributed by McCarty, tracing roots back prior to ATC's publication.
• The district court granted summary judgment in favor of WITT and the other defendants, ruling against ATC's copyright claims.
• The court concluded that ATC's catalog and classification scheme lacked the necessary originality required for copyright protection.

One of ATC’s employees, Kenny Hester, left ATC to form his own transmission parts company, Whatever It Takes Transmissions.

• ATC developed a complex alphanumeric numbering system to categorize various transmission parts and brands.
• The taxonomy involves strategic decisions about categorization, leaving gaps for future parts, and designing specific numerical fields.
• ATC argues that its numbering scheme demonstrates multiple forms of creativity and originality.
• While classification can be a creative endeavor, copyright law protects expression rather than underlying ideas or systems.
• Statutory law explicitly excludes procedures, systems, and methods of operation from copyright protection regardless of their form.

Facts do not supply their own principles of organization.

• ATC's classification scheme and predictions are considered unprotectable ideas rather than copyrightable expressions.
• The merger doctrine prevents copyright protection when there is essentially only one reasonable way to express an underlying idea.
• Leaving numbers unallocated to represent future predictions or placing a part in a specific category merges the idea with its expression.
• ATC argues its individual part numbers are copyright protected as expressions of the catalog as a whole, citing precedent from the American Dental case.
• The American Dental court held that procedure numbers assigned to dental classifications were copyrightable, though its rationale was opaque.

Under the merger doctrine, when there is essentially only one way to express an idea, the idea and its expression are inseparable, and copyright is no bar to copying that expression.

• The ADA dental code descriptions and taxonomy involve original authorial choices and creative decisions.
• Decisions regarding wording, numbering series, and structural gaps demonstrate original authorship.
• However, the mere attachment of numbers to copyrightable categories does not automatically render the numbers themselves copyrightable.
• Part numbers generated through essentially random processes lack the necessary creativity to merit copyright protection.
• A numbering system and the actual numbers produced by it are distinct works under copyright law.

Blood is shed in the ADA’s committees about which description is preferable.

• ATC argued that part numbers taken as a whole could be copyrightable as a middle ground.
• The court rejected this argument because numbers in a catalog lack the narrative expression of a novel.
• Copyright law protects original expression while allowing free use of underlying ideas and information.
• Distinguishing between an unprotectable idea and its expression remains a persistent challenge in courts.
• Legal doctrines like scènes à faire further bar protection for standard or indispensable elements.

Unlike the words that comprise a novel, which add up to a story, the numbers used in ATC’s catalog only add up to a long list of numbers.

• Standard genre tropes and expected elements are classified as unprotectable scènes à faire to prevent authors from monopolizing common settings.
• Courts have applied this doctrine across diverse subjects, ranging from police procedurals in the South Bronx to superhero tropes and surreal egg personifications.
• Mark Lemley argues that generative AI disrupts the traditional idea-expression distinction by automating labor-intensive expression while humans contribute high-level concepts.
• This technological shift raises questions about whether human prompts are protectable expression or uncopyrightable ideas.
• Historical facts constitute another unprotectable category under copyright law, as illustrated by the Hindenburg disaster litigation.
• The historical fact-expression distinction serves specific policy incentives and statutory boundaries regarding what subject matter can be owned.

The zeppelin, the last and most sophisticated in a fleet of luxury airships, which punctually floated its wealthy passengers from the Third Reich to the United States, exploded into flames and disintegrated in 35 seconds as it hovered above the Lakehurst, New Jersey Naval Air Station at 7:25 p. m. on May 6, 1937.

• The disaster at Lakehurst permanently ended the era of passenger airship service and the Nazi regime's dirigible ambitions.
• The tragedy immediately spawned a wealth of journalistic, historical, and literary accounts, including memoirs by survivors and official reports.
• Author A.A. Hoehling published a comprehensive 1962 book arguing that the Hindenburg was destroyed by sabotage.
• Hoehling's investigation points to crew member Eric Spehl as the most likely saboteur based on motive, expertise, and opportunity.
• A decade later, Michael MacDonald Mooney published a more literary retelling that wove symbolic themes around the actual events.

He concludes that the most likely saboteur is one Eric Spehl, a “rigger” on the Hindenburg crew who was killed at Lakehurst.

• The Hindenburg is contrasted as a symbol of technology against traditional methods.
• German creators and the Reich are linked to this technological symbol.
• The airship's destruction is viewed as nature ultimately triumphing over technology.
• Titler's account was published following the release of the appellant's book.
• Affidavit records show Titler admitted to copying Hoehling's sabotage theory.

The destruction is depicted as the ultimate triumph of nature over technology, as Spehl

• Mooney examines the history of flight and the Hindenburg, focusing on the theory that a crew member named Spehl committed sabotage.
• Mooney researched his book using archives, interviews, and prior works by Hoehling and Titler.
• Universal City Studios purchased the movie rights and commissioned writers to develop a cinematic adaptation.
• The final screenplay adopted a disaster-movie formula featuring fictional subplots and characters alongside a sympathetic saboteur.
• Hoehling filed a copyright infringement lawsuit against Universal and Mooney for copying his essential plot.

This formula has become standard fare in so-called 'disaster' movies ....

• Appellees argue that Hoehling's plot constitutes merely an idea.
• Ideas are established as not copyrightable under the law.
• This legal principle forms the foundation of the subject matter discussed.
• The chapter addresses the limitations of copyright protection.
• Distinguishing between protected expression and unprotected ideas is crucial.

Appellees further argue that Hoehling’s plot is an idea, and ideas are not copyrightable as a matter of law.

• Interpretations of historical events and theories are not protected by copyright law to encourage the development of historical works.
• Factual information discovered through research remains in the public domain and can be freely used by subsequent authors.
• Authors are permitted to rely on prior published material to avoid wasted effort and redundant research.
• Standard incidents, settings, and characters known as scenes a faire cannot be copyrighted.
• Courts must ensure that works are not virtually identical, preventing the wholesale usurpation of an author's expression.

Factual information is in the public domain.

• Copyright laws fundamentally aim to encourage contributions to recorded knowledge rather than merely guarantee financial rewards.
• Historical works benefit from authors having a relatively free hand to build upon the work of their predecessors.
• The Seinfeld trivia book case highlights the legal distinction between historical facts and fictional events depicted in a show.
• Judge Sotomayor ruled that trivia questions about fictional events appropriate the creator's original contributions.
• The concept of 'created facts' is technically a misnomer, referring instead to copyrightable expression rather than true facts.

Seinfeld is fiction; both the 'facts' in the various Seinfeld episodes, and the expression of those facts, are plaintiff's creation.

• The Ninth Circuit held that realistic glass-in-glass jellyfish sculptures lack copyright protection due to common artistic elements and jellyfish physiology.
• Granting copyright to such standard combinations would improperly grant the artist a monopoly on lifelike glass jellyfish sculptures.
• Opinion-based facts present a complicated issue in copyright law regarding their protectability.
• Automobile Red Book valuations were found copyrightable because they represent predictions based on professional judgment rather than mere historical data.
• Conversely, settlement prices produced by a mercantile exchange were denied copyrightability because the exchange acted merely as a census taker copying market valuation.

These elements are so commonplace in glass-in-glass sculpture and so typical of jellyfish physiology that to recognize copyright protection in their combination effectively would give Satava a monopoly on lifelike glass-in-glass sculptures of single jellyfish with vertical tentacles.

• The copyright estoppel doctrine prevents authors from claiming copyright protection for fictional elements they originally held out as factual.
• This rule relies on how the work is represented to the public rather than objective truth or the author's subjective beliefs.
• Allowing authors to recharacterize factual claims as fiction later would unfairly trap subsequent creators who relied on those representations.
• Section 102(a) enumerates specific categories of copyrightable subject matter, though the statutory language suggests the list is non-exhaustive.
• Despite the non-exhaustive language, courts and the Copyright Office maintain that unlisted works, such as athletic events, are generally not copyrightable.

It would hinder, not promote the progress of science and useful arts to allow a copyright owner to spring an infringement suit on subsequent authors who built freely on a work held out as factual, contending after the completion of the copyrighted work, and against the work's own averments, that the purported truths were actually fictions.

• The statutory category of a work matters because it can determine the specific rights a copyright holder receives and how courts apply legal approaches.
• Works or their individual components can sometimes fall into more than one copyright category simultaneously.
• Literary works are broadly defined to include not just traditional novels and books, but also non-human-readable formats like computer software code.
• A single song typically generates two distinct copyrights: one for the underlying musical composition and another for the specific sound recording.
• Federal copyright protection for sound recordings historically excluded pre-1972 works until Congress extended protections in 2018.
• Pictorial, graphic, and sculptural works encompass a wide range of art and technical drawings, though they remain limited by the useful articles doctrine.

In addition, perhaps less intuitively, it also includes material that humans typically do not read, such as computer software code, as discussed in more detail in section 5 below.

• U.S. government works are generally excluded from copyright protection by statute.
• The common law government edicts doctrine bars copyright in works by judges and legislators.
• Denying copyright maximizes public access to the law for democratic participation.
• Public funding of government works eliminates the need for copyright as a financial incentive.
• Section 105 strictly applies to federal works, which differs from the broader common law doctrine.

Government works are typically paid for with public funds, which might imply public ownership of those works, or at least no need for a second subsidy of those works via copyright protection.

• State officials and independent contractors are generally not barred from asserting copyright over expressive or federally funded works.
• Federal copyright provisions allow the government to hold copyrights if they are transferred through assignment or bequest.
• Private model codes that are adopted as law raise significant due process concerns regarding public access and notice.
• Circuit courts have historically differed on whether referencing copyrighted works as legal standards strips them of copyright protection.
• Economic incentives for creators play a much lower role in the analysis when due process concerns and public access to the law are high.

Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions.

• Federal law addresses copyright ownership for literary works produced by military members and government employees.
• Copyright protection for official legal texts raises due process concerns when applied across foreign jurisdictions.
• The legal doctrine of useful articles questions whether objects serving a practical function can also receive artistic copyright.
• The landmark case Mazer v. Stein examined whether sculptural statuettes used as lamp bases qualify for copyright protection.
• Courts must determine if artistic features are separable from the utilitarian aspects of manufactured items.

Stripped down to its essentials, the question presented is: Can a lamp manufacturer copyright his lamp bases?

• The central controversy questions whether an artist's copyright covers the mass reproduction of a work intended for utilitarian items like lamp bases.
• Petitioners argue that an artist transitioning into a manufacturer should be limited to design patents rather than receiving copyright protections.
• Historically, copyright legislation has steadily expanded since 1790 to include maps, dramatic compositions, photographs, and three-dimensional works of art.
• The 1909 Copyright Act removed the fine-arts clause, effectively ending statutory verbal distinctions between purely aesthetic and useful works.
• Copyright Office regulations protect artistic craftsmanship based on form, while excluding the mechanical or utilitarian aspects of the objects.

When an artist becomes a manufacturer or a designer for a manufacturer he is subject to the limitations of design patents and deserves no more consideration than any other manufacturer or designer.

• Historical administrative practice and legislative history indicate that Congress intended 'works of art' to encompass statuettes.
• Individual perceptions of beauty are too varied to allow for a narrow or rigid legal definition of art.
• Original expressions that are the author's tangible creation are eligible for copyright regardless of style.
• The intended mass reproduction of these artistic works as lamp stands depends entirely on statutory interpretation.
• Petitioners argue that the existence of design patent laws implies the denial of copyright protection for artistic articles used in manufacture.

Individual perception of the beautiful is too varied a power to permit a narrow or rigid concept of art.

• Industrial designs lacking novelty for patents can be freely copied unless protected otherwise.
• The Court holds that the patentability of an article does not bar its copyright as a work of art.
• Copyright protects the expression of an idea rather than the underlying art or idea itself.
• The primary goal of copyright and patent laws is to encourage creative efforts that advance public welfare.
• A dissenting view questions whether sculptors qualify as authors and their statues as writings under the Constitution.

Is a sculptor an ‘author’ and is his statute a ‘writing’ within the meaning of the Constitution?

• Copyright law extends protection to various applied art objects like statuettes, clocks, and lamps, raising constitutional questions about what constitutes a writing.
• The 1976 Copyright Act codified the principle that useful articles can only receive copyright protection if their artistic features can be separated from their utilitarian aspects.
• Congress explicitly sought to draw a clear line protecting works of applied art while excluding general industrial designs from copyright protection.
• Legislative history and subsequent legal interpretations established two distinct categories of separability: physical separability and conceptual separability.
• While physical separability allows an expressive work to be physically detached from a functional object, conceptual separability proved challenging for courts to define.
• The ongoing confusion surrounding conceptual separability eventually led the Supreme Court to intervene in the 2017 case Star Athletica, LLC v. Varsity Brands, Inc.

Perhaps these are all ‘writings’ in the constitutional sense. But to me, at least, they are not obviously so.

• Congress protects original works of art but generally excludes industrial designs from copyright protection.
• Limited protection is granted to artistic features of useful articles if they can be identified separately and exist independently from utilitarian aspects.
• The Supreme Court established a two-part test requiring features to be perceptible as art and independently protectable if imagined apart from the useful article.
• Respondents sued petitioners for copyright infringement of graphic designs appearing on the surface of cheerleading uniforms.
• Lower courts disagreed on whether the uniform surface designs served a utilitarian function that made them inseparable from the garments.
• The legal debate centers on interpreting separability requirements and balancing statutory limitations with copyright policy.

The line between art and industrial design, however, is often difficult to draw.

• Courts and the Copyright Office use the term separability to analyze whether a feature can exist independently of a useful article.
• The primary legal task in this case is determining if surface designs on cheerleading uniforms are eligible for copyright protection.
• Respondents argue that separability only applies when a pictorial, graphic, or sculptural work constitutes the entire design of a useful article.
• They contend that two-dimensional surface decorations appearing on useful articles are fundamentally distinct from the articles themselves.
• Under the respondents' theory, these surface decorations operate as inherently separable two-dimensional works of graphic art.

Under this theory, two-dimensional artistic features on the surface of useful articles are “inherently separable.”

• The statutory text of Section 101 requires separability analysis for two-dimensional pictorial and graphic features just as it does for three-dimensional sculptural features incorporated into useful articles.
• Copyright policy determinations must rely strictly on statutory interpretation and the clear meaning of the text rather than free-ranging judicial policy preferences.
• The first separability requirement is easily satisfied if a decisionmaker can visually spot a distinct two- or three-dimensional artistic element on the useful article.
• The independent-existence requirement is more difficult, demanding that the identified feature can exist as its own standalone artistic work once imagined apart from the utilitarian object.
• A feature cannot qualify for copyright if it is itself a useful article, a part of a useful article, or merely a replica of a useful article in another medium.

This is not a free-ranging search for the best copyright policy, but rather depends solely on statutory interpretation.

• The landmark Mazer decision established that artistic works retain copyright protection even when incorporated into useful objects.
• Early post-Mazer regulations introduced the modern separability test to distinguish between utilitarian functions and protectable artistic features.
• Congress eventually incorporated these regulatory principles directly into Section 101 of the 1976 Copyright Act.
• A design feature of a useful article is eligible for copyright if it can be identified and imagined apart from the object as a standalone work.
• Applying this separability test to cheerleading uniform surface decorations shows they qualify as protectable two-dimensional art.

If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art.

• Retaining the outline or contour of a useful article does not bar a two-dimensional design from receiving copyright protection.
• Denying protection to designs covering an entire useful article while protecting partial designs would create an unjustified legal anomaly.
• Copyright in this context applies strictly to the two-dimensional surface artwork, leaving others free to manufacture uniforms of the exact same cut and shape.
• Arguments requiring that a useful article remain equally useful after artistic extraction misinterpret the statutory separability test.
• The core focus of the separability inquiry is whether the extracted feature qualifies as a nonuseful work on its own, not the utility of the remainder.

Failing to protect that art would create an anomaly: It would extend protection to two-dimensional designs that cover a part of a useful article but would not protect the same design if it covered the entire article.

• Utilitarian objects like shovels cannot be copyrighted under statutory law.
• Artistic features of an object can be copyrighted if they exist independently.
• The statute does not require a fully functioning useful article to remain after conceptual removal.
• The court abandons the traditional distinction between physical and conceptual separability.
• Arguments are made to incorporate designer artistic judgment and marketability into the separability test.

Without the base, the “lamp” would be just a shade, bulb, and wires.

• The petitioner argued that Congress intended to exclude industrial design from copyright protection entirely.
• The court rejected the presumption of hostility toward industrial design, noting that patent and copyright are not mutually exclusive.
• An artistic feature of a useful article is eligible for copyright if it can be perceived separately and qualifies as a protectable work.
• The dissenting opinion argued that the cheerleader uniform designs cannot be perceived separately from the useful article.
• The dissent emphasized that pictures of the design features merely replicate the underlying useful article of cheerleader uniforms.

Look at the designs that Varsity submitted to the Copyright Office. You will see only pictures of cheerleader uniforms.

• Replicating a useful article in a different medium does not grant copyright protection over the underlying useful article itself.
• A work of art must be perceived as two- or three-dimensional and separate from any utilitarian article to qualify for copyright.
• Copyright eligibility requires either physical separateness, where design features can be removed without harming the function, or conceptual separateness.
• Conceptual separateness means imagining the design feature independently as a work of art without picturing a replica of the useful object.
• Integrated designs, such as a lamp where wires run through a sculpted cat base, can still achieve conceptual separateness if the art exists independently.

Can the design features (the picture, the graphic, the sculpture) be physically removed from the article (and considered separately), all the while leaving the fully functioning utilitarian object in place?

• Congress and the Copyright Office recognize copyrightable design works when artistic elements can be applied to useful objects.
• Examples of protected designs include carvings, reliefs, engravings, and printed artwork on items like chairs, flatware, and t-shirts.
• Courts have similarly protected decorative additions such as statuettes used as lamp bases and engravings on furniture.
• Conversely, objects whose three-dimensional designs are intrinsically tied to their utilitarian function are denied copyright protection.
• A design cannot receive copyright if it is physically or conceptually inseparable from the functional object itself, such as spoon or candleholder shapes.

By way of contrast, Van Gogh’s painting of a pair of old shoes, though beautifully executed and copyrightable as a painting, would not qualify for a shoe design copyright.

• Designs that are inseparable from useful objects cannot be copyrighted regardless of their aesthetic appeal.
• A separable design feature must be capable of existing independently as a standalone artistic work.
• Imagining whether a picture of the design is also a picture of the useful article helps determine separability.
• While almost any industrial design can be imagined as art, Congress intended for inseparable designs to rely on patents rather than long copyright protection.
• The conceptual separation approach addresses the economic and practical balance of providing incentives without overprotecting useful items.

What is there in the world that, viewed through an esthetic lens, cannot be seen as a good, bad, or indifferent work of art?

• Copyright protection imposes notable costs, including higher consumer prices and the administrative burden of searching for and securing permissions.
• Thomas Jefferson famously noted that the costs of limited monopolies can sometimes outweigh their benefits.
• Congress has significantly extended the duration of copyright protection from the original 14 years to over a century.
• The Constitution assigns Congress the primary responsibility for balancing copyright costs and benefits, a role courts must respect.
• While Congress has not granted broad copyright protection to fashion garments, designers still utilize patent and trademark law.
• Granting copyright protection to garment designs would overstep judicial bounds and provide rights that Congress deliberately withheld.

Sometimes, as Thomas Jefferson wrote to James Madison, costs can outweigh “the benefit even of limited monopolies.”

• The author examines whether the design features of Varsity's cheerleader uniforms can exist separately from their utilitarian aspects.
• The visual evidence shows that even when contexts are omitted, the shapes and lines still clearly depict dresses.
• Attempting to imaginatively remove the patterns to place them on a canvas still results in the image of a cheerleader's dress.
• Because the esthetic elements are inextricably bound to the useful article, they are neither physically nor conceptually separate and cannot be copyrighted.
• Varsity attempts to protect unoriginal stripes and chevrons indirectly to control the manufacture of three-dimensional uniforms.
• The dissent argues that granting such copyright violates the fundamental principle that one cannot claim rights in a useful article through a mere replica.

That is to say, they look like pictures of cheerleader uniforms, just like Van Gogh’s old shoes look like shoes.

• The text examines the legal history and application of the Star Athletica separability test through the lens of the Brandir RIBBON bicycle rack.
• The creator of the bicycle rack originally developed wire sculptures as personal artistic expressions before realizing their potential utilitarian application.
• Judicial opinions in the Varsity Brands case reveal deep disagreements over whether cheerleading uniform designs constitute standalone graphics or inherent parts of useful articles.
• Copyright law's lack of a clear claiming methodology frequently complicates the analysis of whether a work qualifies as a useful article.
• While three-dimensional functional features like pockets and sleeves are obvious in fashion design, the potential functionality of two-dimensional designs remains an open question.

These sculptures were, he said, created and displayed in his home as a means of personal expression, but apparently were never sold or displayed elsewhere.

• Section 101 defines a useful article by excluding features whose intrinsic function is merely to portray appearance or convey information.
• Features serving any purpose beyond mere appearance or information conveyance are arguably classified as functional under copyright law.
• Dual-nature features, such as camouflage, present a challenge by simultaneously serving expressive and highly practical purposes.
• Fashion designs often exploit optical illusions, like the Müller-Lyer illusion, to actively influence how a wearer's body shape is perceived.
• These design techniques raise complex legal questions regarding whether body-altering garments and patterns should be deemed functional or separable.

A camouflage pattern might portray its own appearance or convey information. But it also functions to cloak the person or object that it covers in an appropriate environment.

• Christopher Sprigman and Kal Raustiala argue that permitting fashion piracy actually benefits society by driving innovation.
• The 'piracy paradox' suggests that copying accelerates design obsolescence, which fuels the apparel industry's rapid innovation cycle.
• Because fashion relies heavily on status and cyclical trends, copying creates a continuous demand for new designs.
• Conversely, Scott Hemphill and Jeannie Suk Gersen advocate for protecting close copies to balance collective trends with individual expression.
• These competing legal theories raise questions about whether copyright law should protect fashion designs given their role in maintaining social status.

copying functions as an important element of—and perhaps even a necessary predicate to—the apparel industry’s swift cycle of innovation.

• Design patents protect ornamental designs for manufactured articles for a duration of fifteen years following examination by the Patent and Trademark Office.
• Trade dress protection covers product packaging and design as a form of trademark, arising through commercial use rather than mandatory registration.
• Unregistered trade dress is enforceable under federal law, provided the design distinguishes the source of the goods and is not purely functional.
• Product packaging can be inherently distinctive, but product design requires acquired secondary meaning to receive trade dress protection.
• Sui generis design protection offers limited coverage in the United States, notably for vessel hulls and semiconductor chips, while fashion designs have lacked similar statutory protection.

This appeal involves the validity of a copyright in a full-body banana costume.

• Rasta secured a copyright registration for its full-body banana costume in 2010.
• A former business partner, Yagoozon, later formed Kangaroo and began selling a similar unlicensed costume.
• Rasta sued Kangaroo for copyright infringement, leading to a preliminary injunction granted by the District Court.
• The court analyzed whether the costume's artistic features are separable from its utilitarian aspects to determine copyrightability.
• The court concluded that the combination of the banana's sculptural features can exist independently as a copyrightable work.

This dispute stems from a business relationship that went bad.

• Kangaroo argued that depictions of natural objects in their natural condition should never be eligible for copyright protection.
• The court rejected this argument, emphasizing that the originality requirement has a very low bar and judges must avoid aesthetic judgments.
• The banana costume's combination of colors, lines, shape, and length were found to be separable, independently existing, and copyrightable.
• The merger doctrine does not apply because numerous alternative ways to design a banana costume exist, preventing a monopoly on the underlying idea.
• Cutout holes for the head and arms are purely utilitarian and intrinsically tied to the wearable nature of the garment, making them uncopyrightable.

A judge’s own aesthetic judgments must play no role in copyright analysis.

• The court affirmed copyright protection for a banana costume because multiple non-infringing design variations exist.
• Legal commentary debates whether twenty alternative examples are truly sufficient to justify broad copyright protection.
• The text transitions from intellectual property law to introduce the fundamental concepts and terminology of computer software.
• Software represents the non-tangible instructions stored in memory that direct hardware operations.
• Humans write these instructions in source code using specific programming syntax.
• Compilers convert human-readable source code into binary object code that computers can execute.

Of the 20 costumes—treating minor variations as different costumes—3 are 'sexy' bananas, a different 6 cover the face, 1 is a guy in a yellow suit with a hood, and 1 is an odd Wolverine.

• Software programs are designed using modular components that can be reused across different applications.
• The software industry transitioned from being a free hardware add-on in the 1950s to an independent market by the 1980s.
• Modern software is widely distributed across diverse devices ranging from traditional computers to everyday appliances.
• Software markets are heavily driven by network effects, where a product's value increases as more people use it.
• Network effects make file sharing easier and reduce the need for retraining when switching jobs.
• Software is also subject to increasing returns due to positive market feedback and the proliferation of complementary goods.

An operating system or application program will allow even a single user to perform a variety of tasks regardless whether even a single other consumer owns the software.

• Operating systems with larger market shares attract more application programs, reinforcing their dominance.
• Network effects create benefits such as increased functionality, greater choice, and standardized data exchange.
• Strong network effects can inadvertently trap industries in obsolete standards and impede new market entrants.
• The 1976 Copyright Act does not explicitly mention software, but legislative history groups it under literary works.
• CONTU concluded in 1978 that software deserves copyright protection while preserving the distinction between ideas and expressions.

Sometimes the power of network effects can trap an industry or a market in an obsolete or less-than-optimal standard because of the difficulties of switching away from it.

• When copyrighted elements are the only essential means to accomplish a task, their later use does not constitute infringement.
• Congress formally defined computer programs and added specific defenses to copyright infringement in 1980.
• Early legal battles, such as Apple versus Franklin, tested the boundaries of software copyrightability.
• The Third Circuit ruled that both source code and object code qualify for protection as literary works.
• Operating system programs received the same copyright protection as application programs, instructing computers effectively.
• The court rejected the merger doctrine argument, stating that compatibility alone does not eliminate alternative expressions.

The definition of ‘literary works’ in section 101 includes expression not only in words but also ‘numbers, or other ... numerical symbols or indicia,’ thereby expanding the common usage of ‘literary works.’

• Courts quickly established that both source code and object code for operating systems and applications are copyrightable.
• Critics argue that software lacks traditional communicative functions because mature programs are addressed to machines rather than humans.
• Further skepticism arises from the argument that object code is automatically compiled by computers and that software is primarily functional.
• Scholars warn that strong software copyright protection combined with network effects could impede technological progress.
• Early cases focused on preventing exact program piracy, forcing later courts to distinguish between unprotectable ideas and protectable expression in non-literal code.

Computer programs, in their mature phase, are addressed to machines.

• Advances in computer science have continually forced courts to navigate challenging legal questions within copyright law.
• The constitutional foundation of copyright law aims to stimulate public welfare and artistic creativity by offering limited personal gain incentives to authors.
• Copyright law strives to maintain a delicate equilibrium by protecting authors to encourage creation while preventing monopolistic stagnation.
• Courts address the complex issue of whether non-literal aspects of computer programs, beyond written code, are protected by copyright.
• The Copyright Act defines a computer program as a set of instructions used to achieve a specific result.
• Programmers build software by moving from general ultimate purposes down to simpler constituent subtasks, subroutines, and modules.

As scientific knowledge advances, courts endeavor to keep pace, and sometimes—as in the area of computer technology—they are required to venture into less than familiar waters.

• Programmers organize decomposed program functions into flow charts that map module interactions.
• Parameter lists dictate the specific form and content of information exchanged between interacting modules.
• Program structure encompasses module functions, relationships, and macros that initiate operation sequences.
• The design phase balances speed, efficiency, simplicity, and hardware memory constraints.
• Coding translates the structural blueprint into human-readable source code and then compiles it into binary object code.
• Debugging involves running the completed program to locate and correct logical and syntactical errors.

This step has been described as comparable to the novelist fleshing out the broad outline of his plot by crafting from words and sentences the paragraphs that convey the ideas….

• Software compatibility programs like ADAPTER translate program languages between different operating systems, making them highly marketable and valuable to users.
• Altai sought to expand its ZEKE scheduling program to MVS operating systems and recruited a former CA programmer familiar with ADAPTER.
• The recruited programmer secretly copied approximately 30 percent of ADAPTER's code to create Altai's competing component, OSCAR.
• Upon facing a copyright and trade secret lawsuit from CA, Altai initiated a complete rewrite of the infringing code using an isolated team of programmers.
• Altai successfully replaced the infringing code with OSCAR 3.5 and provided it as a free upgrade to customers to mitigate the legal dispute.

When the dust finally settled, Arney had copied approximately 30% of OSCAR’s code from CA’s ADAPTER program.

• Altai conceded liability and damages for directly copying ADAPTER into OSCAR 3.4, leaving the appeal focused entirely on the newer OSCAR 3.5 version.
• Copyright protection historically extends beyond strictly literal text to encompass non-literal components and fundamental structures to prevent plagiarism through immaterial variations.
• Altai intentionally purged all ADAPTER source code when developing OSCAR 3.5 to eliminate literal similarities.
• Computer programs are legally classified as literary works, meaning their non-literal structures can potentially receive copyright protection.
• Copyright law protects only the expression of an idea rather than the underlying idea itself, creating the need to define the exact scope of protection for software.

It is of course essential to any protection of literary property ... that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.

• Copyright law protects the original expression of a programmer's ideas rather than the underlying processes or methods.
• Distinguishing between an idea and its expression is particularly difficult for computer programs due to their utilitarian nature.
• Under the principle established in Baker v. Selden, elements of a work that are necessarily incidental to its function cannot be copyrighted.
• The Whelan decision attempted to separate idea from expression in utilitarian works by equating the program's purpose with its idea.
• According to the Whelan approach, any specific means of achieving the program's purpose that is not strictly necessary for that function constitutes protectable expression.

Drawing the line between idea and expression is a tricky business.…

• The Whelan rule for distinguishing ideas from expression in computer programs has received a mixed reception in the courts.
• Academic commentators have widely criticized Whelan for being conceptually overbroad and assuming a program has only one underlying idea.
• Because computer programs consist of interacting subroutines with their own purposes, Whelan's general formulation is descriptively inadequate.
• The district court wisely declined to follow the Whelan approach in favor of a more nuanced methodology.
• A recommended three-step procedure involves abstraction, filtration, and comparison to determine substantial similarity in non-literal elements.

The crucial flaw in Whelan’s reasoning is that it assumes that only one ‘idea,’ in copyright law terms, underlies any computer program, and that once a separable idea can be identified, everything else must be expression.

• Works can be analyzed through a series of patterns of increasing generality, stopping before reaching unprotected broad ideas.
• The abstractions test is adaptable to computer programs to recognize a mixture of numerous ideas and expressions.
• Applying the test requires courts to dissect a program's structure and isolate each level of abstraction from code to ultimate function.
• A computer program maintains structure at every level of abstraction, ranging from complex low-level instructions to trivial high-level functions.
• The successive filtering method separates protectable expression from non-protectable material dictated by efficiency, external factors, or the public domain.

Initially, in a manner that resembles reverse engineering on a theoretical plane, a court should dissect the allegedly copied program’s structure and isolate each level of abstraction contained within it.

• The merger doctrine fits comfortably within the context of computer programs and their textual aspects.
• Programmers strive for maximum efficiency, making efficiency akin to concise mathematical computations.
• Efficiency concerns can narrow the practical range of program expression to only one or two workable options.
• When a specific module is necessary for efficient implementation, expression merges with the underlying idea and lacks protection.
• The utilitarian nature of software and competitive market forces create proof problems that the merger doctrine helps eliminate.
• Similar efficient structures may result from independent creation rather than copying and should be disregarded in similarity analysis.

While, hypothetically, there might be a myriad of ways in which a programmer may effectuate certain functions within a program,—i.e., express the idea embodied in a given subroutine—efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options.

• Standard literary and programming devices are generally not copyrightable when their use is practically unavoidable.
• A programmer's design freedom is heavily constrained by external factors such as hardware specifications, industry standards, and compatibility requirements.
• Courts must examine a program's structure to filter out elements dictated by these external factors.
• Material taken from the public domain must also be filtered out before conducting a substantial similarity analysis.
• The final step of the test leaves behind a core of protectable expression known as the golden nugget.
• Copyright law aims to balance rewarding artistic creativity with preserving the free use of non-protectable ideas and processes.

Once a court has sifted out all elements of the allegedly infringed program which are “ideas” or are dictated by efficiency or external factors, or taken from the public domain, there may remain a core of protectable expression.

• Copyright law balances the reward for authors with the ultimate goal of promoting broad public access to creative works.
• The Copyright Act must be interpreted in light of its core purpose when technological changes create ambiguity.
• Substantial effort and labor alone cannot confer copyright status on an otherwise uncopyrightable work, as established by Feist.
• Feist undercuts previous legal reasoning that extended copyright protection beyond literal computer code to reward programmers' efforts.
• Rejecting overly broad copyright protection prevents early entrants from locking up basic programming techniques.

To the contrary, serious students of the industry have been highly critical of the sweeping scope of copyright protection engendered by the Whelan rule, in that it enables first comers to lock up basic programming techniques as implemented in programs to perform particular tasks.

• The exact contours of copyright protection for non-literal computer program structure remain unclear due to the hybrid utilitarian and expressive nature of software.
• Copyright registration is generally considered ill-suited for dynamic computer science technology, and patent registration might be a more appropriate rubric.
• Courts must apply long-standing principles of copyright law to computer programs without distorting fundamental legal tenets or overriding Congressional intent.
• The preferred judicial method involves filtering out the unprotected aspects of the allegedly infringed program rather than the suspect program.
• Focusing analysis on the infringing material rather than the infringed material avoids wasting time and prevents missing qualitatively vital misappropriations.

Thus far, many of the decisions in this area reflect the courts’ attempt to fit the proverbial square peg in a round hole….

• The abstractions test evaluates computer programs across levels of increasing generality from object code to general outline.
• The district court properly excluded non-protectable expression when evaluating the structural components of OSCAR 3.5 compared to ADAPTER.
• Parameter lists and macros were found to be either in the public domain, dictated by functional demands, or lacking substantial similarity.
• Overlapping services required were determined by external operating system demands rather than proprietary authorship.
• Organizational charts that are simple and obvious follow naturally from the work's theme rather than creative expression under the scenes a faire doctrine.

This is but one formulation of the scenes a faire doctrine, which we have already endorsed as a means of weeding out unprotectable expression….

• Unprotectable expression remains in the public domain to serve as building blocks for future works.
• Using illicitly obtained material does not always lead to severe liability if the content lacks copyright protection.
• The Ninth Circuit in Apple v. Microsoft ruled that copyright does not grant patent-like monopolies over broad software ideas like graphical user interfaces or desktop metaphors.
• Copyright protection for software interfaces is often extremely thin, requiring a standard of virtual identity for infringement.
• Competitors frequently test copyright boundaries when attempting to achieve program compatibility or functional equivalence.

Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor .

• The legal case centers on whether the computer menu command hierarchy of Lotus 1–2–3 is copyrightable subject matter.
• Lotus 1–2–3 relies on a structured system of 469 commands across more than 50 menus and submenus.
• Users can write macros to automate a series of command choices, significantly reducing the time needed to operate the program.
• Borland developed Quattro to compete with Lotus 1–2–3, striving to offer a superior product with enormous innovations.
• Borland copied the entire Lotus menu command hierarchy without copying underlying code to ensure user compatibility and macro usability.

In so doing, Borland did not copy any of Lotus’s underlying computer code; it copied only the words and structure of Lotus’s menu command hierarchy.

• The district court initially ruled that the Lotus menu command hierarchy was copyrightable expression.
• This decision was based on the finding that millions of satisfactory alternative menu structures and command words could be constructed.
• The court noted that simple substitutions, such as using 'Exit' instead of 'Quit', proved that creative choices existed.
• Consequently, the district court determined a jury trial was necessary to evaluate functional constraints on the arrangement.
• Following the ruling, Borland removed the Lotus Emulation Interface but retained a 'Key Reader' to maintain macro compatibility.
• Lotus responded by filing a supplemental complaint alleging that the Key Reader also infringed its copyright.

The ‘Quit’ command could be named ‘Exit’ without any other modifications, and that the ‘Copy’ command could be called ‘Clone,’ ‘Ditto,’ ‘Duplicate,’ ‘Imitate,’ ‘Mimic,’ ‘Replicate,’ and ‘Reproduce,’ among others.

• The district court found that Borland copied the Lotus 1-2-3 menu tree and its first-letter representations.
• Borland argued that the menu command hierarchy constitutes an unprotectable system or method of operation under 17 U.S.C. § 102(b).
• The court noted that whether a computer menu command hierarchy is copyrightable is a matter of first impression.
• Borland relied heavily on the precedent of Baker v. Selden, comparing the spreadsheet to a paper ledger.
• The court distinguished Baker v. Selden, clarifying that the dispute involves operating commands rather than an accounting system.
• Unlike cases involving nonliteral copying of code, this appeal specifically addresses the deliberate, literal copying of the menu hierarchy.

Borland contends that the Lotus menu command hierarchy is not copyrightable because it is a system, method of operation, process, or procedure foreclosed from protection by 17 U.S.C. § 102(b)….

• The Altai test is found to be unhelpful and potentially misleading when evaluating the literal copying of menu command hierarchies.
• Courts should initially determine whether a menu command hierarchy as a whole can be copyrighted rather than filtering individual components.
• Under 17 U.S.C. § 102(b), copyright protection does not extend to any idea, procedure, process, system, or method of operation.
• A method of operation refers to the means by which a person operates something, such as a car, food processor, or computer.
• The Lotus menu command hierarchy is classified as an uncopyrightable method of operation because it provides the means to control the software.
• Unlike underlying code or screen displays, the menu command hierarchy is essential for users to actually operate and control the program's functions.

We hold that the Lotus menu command hierarchy is an uncopyrightable “method of operation.”

• Literal copying of expression always constitutes similarity as to the expression of ideas.
• The district court treated the Lotus menu command hierarchy as a copyrightable expression of an idea.
• The appellate court holds that expression is not copyrightable if it forms part of a program's method of operation.
• Methods of operation are the concrete means by which a user operates something, not merely high-level abstractions.
• The availability of alternative designs is immaterial when determining if a system is a method of operation.

If specific words are essential to operating something, then they are part of a "method of operation" and, as such, are unprotectable.

• The teachings of science and useful arts aim ultimately at practical application and use by the public.
• A written description of an art can be copyrighted, but the underlying art or method itself cannot.
• The Lotus menu command hierarchy was designed for learning and use, placing it under copyright prohibition rules.
• The Lotus command structure is compared to VCR buttons, which serve as the method of operating a machine rather than literary expression.
• Selecting a Lotus command by highlighting or typing is directly analogous to pressing a labeled button on a device.

That the buttons are arranged and labeled does not make them a “literary work,” nor does it make them an “expression” of the abstract “method of operating” a VCR via a set of labeled buttons.

• The Lotus 1-2-3 menu command hierarchy functions as a literal method of operation rather than mere labels.
• Requiring users to learn different command methods for identical functions across programs is deemed absurd.
• User-written macros rely on the command hierarchy, meaning copyright protection would force unnecessary rewriting.
• Methods of operation are explicitly excluded from copyrightability under congressional direction in section 102(b).
• Third-party developers like Borland are legally permitted to build upon existing methods of operation without infringement.

Under Lotus’s theory, if a user uses several different programs, he or she must learn how to perform the same operation in a different way for each program used.

• Traditional copyright law was designed for literary and artistic works to balance creative incentives with public access.
• Computer programs possess a mechanical utility and instrumental role, which fundamentally alters the copyright calculus.
• While intellectual property incentives still apply to useful items, the cost of restricting access to efficient tools is much higher.
• Patents traditionally address utility through novelty requirements and shorter terms, unlike standard copyright law.
• Computer menus and interfaces highlight the danger of fencing off the commons due to user investment and habit.
• Applying standard copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.

Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.

• The text discusses interpreting statutes as congressional commands.
• It addresses the application of familiar copyright doctrines to computer programs.
• The process is described as happening in a cookie cutter fashion.
• It questions whether programs should be treated as standard copyright subjects.

Of course, one could still read the statute as a congressional command that the familiar doctrines of copyright law be taken and applied to computer programs, in cookie cutter fashion, as if the programs were

• Copyright doctrine has traditionally developed through case-by-case judicial experience rather than detailed statutory prescription.
• The 1976 Act did not instruct courts to abandon this adaptive, common-law approach when facing new technological problems.
• Users accessed the Lotus menu in Borland programs primarily to utilize existing macros and familiarity, rather than for the menu itself.
• Maximizing the original creator's reward cannot be the sole concern of copyright law, or else all limitations and exceptions would vanish.
• Granting Lotus a monopoly over its command arrangement would unjustly trap users who invested their own time in learning the system.
• Customers should not remain captives of a specific software interface simply because of learning investments made by the users themselves.

If Lotus is granted a monopoly on this pattern, users who have learned the command structure of Lotus 1–2–3 or devised their own macros are locked into Lotus, just as a typist who has learned the QWERTY keyboard would be the captive of anyone who had a monopoly on the production of such a keyboard.

• Lotus benefited from being first to market, leaving Borland to either offer a superior product or target former Lotus customers.
• Legal debate centers on whether to rule computer menus unprotectable by copyright or to establish a new doctrine of privileged use.
• Classifying a software menu as a method of operation is linguistically defensible because its purpose is to transmit user directions to a computer.
• A privileged use approach would protect competitors helping users exploit prior learning without granting immunity for blatant plagiarism.
• While a privileged use doctrine aligns with policy reasons, it introduces administrative costs, delays, and unpredictability for the industry.
• Ultimately, these copyright determinations are critical policy choices best informed by underlying industry considerations rather than mere semantics.

To call the menu a “method of operation” is, in the common use of those words, a defensible position.

• Computer software is primarily protected through patent law and trade secrecy protections.
• Patents grant a twenty-year exclusion right for novel and useful inventions after rigorous examination.
• Recent U.S. Supreme Court decisions have made acquiring software patents significantly more difficult.
• Trade secret law protects economically valuable secret information, but allows for independent discovery and reverse engineering.
• Open-source software utilizes copyright licenses to grant users rights to study, modify, and distribute code while enforcing open availability.

That being said, the U.S. Supreme Court has made it harder to get software patents by reining in the rules of patentable subject matter.

• Google copied Java API declaring code into Android to achieve developer compatibility.
• The Federal Circuit held that expressive methods of operation can be copyrightable.
• The court rejected the merger doctrine by evaluating options at the time of creation rather than infringement.
• The Supreme Court ultimately ruled in Google's favor on fair use grounds.
• Subsequent decisions have continued to shape the copyrightability of software interfaces.

Of course, once []Oracle created ‘java.lang.Math.max,’ programmers who want to use that particular package have to call it by that name.

• Prior to 1990, U.S. copyright law did not explicitly protect architectural works.
• Buildings were previously treated as useful articles subject to strict separability analysis.
• Congress passed the Architectural Works Copyright Protection Act in 1990 to comply with the Berne Convention.
• The new law protected the overall form, arrangement, and composition of spaces while excluding standard features.
• Protection applies only to works created on or after December 1, 1990, and requires fixation in a tangible medium.

Until that time, in theory, buildings could be protected as pictorial, graphic, or sculptural works, but they were subject to exacting separability analysis as useful articles.

• Architect James Zalewski sued several builders for allegedly infringing his colonial home designs after their licensing agreements expired.
• Defendants countered that their architectural works did not copy the legally protected elements of Zalewski's original blueprints.
• Copyright law strictly protects original expressions of authorship while leaving historical facts, ideas, and standard tropes in the public domain.
• Doctrines like scènes-à-faire and merger prevent authors from monopolizing standard elements or ideas that can only be expressed in a few ways.
• The core legal challenge in this case is determining how to properly separate protectable expression from unprotectable elements in architectural works.

Any artist may portray the Spanish Civil War, but no one may paint another Guernica.

• The defendant argues that architectural designs are unprotectable compilations under the Eleventh Circuit's Intervest precedent.
• Intervest held that architectural works only receive thin copyright protection because they arrange unoriginal elements.
• The current court rejects Intervest's reasoning, noting that all art forms combine uncopyrightable elements into a whole.
• Statutory definitions across various mediums similarly rely on arranged discrete elements, making the compilation label unhelpful.
• The true challenge in copyright cases is distinguishing between what originated with the author and what did not.

No individual word is copyrightable, but the arrangement of words into a book is. No color is copyrightable, but the arrangement of colors on canvas is.

• Architectural works and compilations are distinctly defined statutory categories with separate legal criteria.
• Legislative history shows Congress intended for architectural copyrights to be analyzed similarly to other creative works.
• Courts must evaluate original design elements rather than relying solely on the arrangement of standard features.
• Previous case law demonstrates that generalized design notions constitute unprotectable ideas rather than protected expression.
• Non-traditional areas like architecture and computer programs utilize standard copyright doctrines such as merger and public domain.

Courts should treat architectural copyrights no differently than other copyrights.

• Programming and efficiency principles in architecture are denied copyright protection.
• Design elements driven by building codes, topography, or engineering necessity are unprotected.
• Architectural styles and market expectations, known as scènes-à-faire, receive no copyright.
• Prior legal cases establish that site topography and generalized functional layouts are unprotectable facts.
• While topography may inspire original architectural solutions, the underlying site conditions remain uncopyrightable.

We do not doubt that topography will often inspire, or indeed require, original architectural solutions that will be worthy of copyright.

• Similarities between architectural designs do not automatically constitute wrongful copying if they stem from standard conventions.
• Consumer expectations, lot sizes, and standard room layouts dictate design parameters that cannot be copyrighted.
• Designing within a traditional style like a colonial home binds the creator to certain unprotectable conventions.
• Comparing the designs reveals that shared elements belong to the architectural archetype rather than the plaintiff's original expression.
• Because the plaintiff's original contribution within a pre-existing style was slight, his copyright protection remains very thin.

Great artists often express themselves through the vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian Dances; and Plaintiff designed his colonial houses.

• Functional aspects of works are governed by patent law rather than copyright law.
• Originality in architectural works can be established through overall form or the arrangement of spaces, while excluding standard features.
• Congress added architectural works as a distinct copyright category to avoid complicated separability analyses.
• Specific statutory exceptions allow building owners to alter or destroy their buildings and permit the public to photograph buildings visible from public places.
• The Copyright Act does not explicitly define author or authorship, relying instead on statutory implication and judicial interpretation.
• Initial copyright ownership vests in the author of the work or through works made for hire.

Does that mean that functional aspects of architectural works are protectable, so long as they are original?

• Initial copyright ownership generally vests in the author or co-authors of a work.
• For works made for hire, the employer or commissioning party is legally considered the author and owns all rights.
• The Copyright Act dictates specific rules for single-authored works, joint works, and works made for hire.
• Alexander Lindsay claimed copyright ownership over underwater footage and pre-production storyboards of the Titanic wreck.
• Despite being central to copyright law, the Copyright Act does not explicitly define the term author or authorship.

The Copyright Act does not define that term or tell us how to determine whether someone is an “author,” although that determination is absolutely central to copyright law.

• Defendants argued the plaintiff lacked copyright protection because he did not personally photograph the shipwreck.
• Copyright law states ownership vests initially in the author who translates an idea into a fixed, tangible expression.
• Legal precedent establishes that photographs receive copyright protection when representing the original intellectual conceptions of the author.
• Plaintiff Lindsay contributed original conceptions by creating storyboards, planning lighting, and directing camera angles.
• Failing to personally operate the camera does not defeat an authorship claim if the individual exercises a high degree of artistic control.
• Exercising detailed control over production elements allows a director to be considered an author under the Copyright Act.

The defendants first argue that the plaintiff cannot have any protectable right in the illuminated footage since he did not dive to the ship and thus did not himself actually photograph the wreckage.

• Cindy Lee Garcia performed a minor, five-second cameo in an action film that was deceptively re-edited into an inflammatory anti-Islam polemic.
• The resulting video, Innocence of Muslims, sparked widespread violent protests, political controversy, and resulted in death threats against Garcia.
• Garcia asked Google to remove the video, citing privacy rights and copyright infringement in her brief performance, but Google declined.
• After a district court denied Garcia's motion for a preliminary injunction, a divided panel majority reversed the decision and granted it.
• The case ultimately highlights the tense legal battle between an individual seeking personal protection and the fundamental principles of free speech and copyright law.

After it was translated into Arabic, the film fomented outrage across the Middle East, and media reports linked it to numerous violent protests.

• The law does not clearly favor Garcia’s claim to a copyright for her five-second acting performance in the film Innocence of Muslims.
• Under the Copyright Act, motion pictures are treated as single integrated audiovisual works rather than collections of separate contributions.
• The Copyright Office rejected Garcia's application, affirming its longstanding practice that individual actors cannot copyright isolated performances within a film.
• Granting separate copyrights to individual actors would create a severe legal morass and logistical nightmare by splintering movies into thousands of independent works.
• Garcia's claim faces an additional fundamental statutory barrier because she never independently fixed her acting performance in a tangible medium of expression.

Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.…

• Youssef and his crew fixed Garcia's performance in the film without her participation.
• Garcia argued against the film's ultimate rendition and portrayal, lacking authority over its fixation.
• The district court committed no error in determining that Garcia lacked a valid copyright claim.
• Garcia cannot claim copyright in words that she neither authored nor spoke despite being dubbed.
• Privacy laws rather than copyright may offer the proper remedies for Garcia's reputational harms.

That leaves Garcia with a legitimate and serious beef, though not one that can be vindicated under the rubric of copyright.

• Garcia's performance met all statutory requirements for copyright protection as an original, fixed work.
• The majority court opinion creates legal confusion by suggesting the performance was not copyrightable.
• Denying copyright status to individual film takes threatens the legal protection of all un-assembled creative materials.
• Consequences of this logic include leaving alternative scenes, special effects, and draft chapters vulnerable to theft.
• The author criticizes the majority for stripping performers of the rights intended by Congress.

If this is what my colleagues are saying, they are casting doubt on the copyrightability of vast swaths of material created during production of a film or other composite work.

• A performer does not need to operate recording equipment to be recognized as an author of their own performance.
• Performances inherently contain unique personality and a minimal degree of creativity distinct from the script.
• Creators of original, fixated material automatically acquire copyright interests immediately upon creation.
• Collaborative works like films involve multiple contributors who may hold separate copyrightable interests.
• Parties involved in film production should allocate their rights through contracts rather than courts limiting copyrights.
• The majority opinion mistakenly shrinks authorial rights to appease speculative industry concerns.

Did Jimi Hendrix acquire no copyright in the recordings of his concerts because he didn’t run the recorder in addition to playing the guitar?

• An artist created a massive living wildflower display in Chicago called Wildflower Works.
• The park district later altered and reduced the size of the garden without the artist's permission.
• The artist sued under the Visual Artists Rights Act for moral rights violations.
• The court ultimately rejected the claim, determining that a living garden is not copyrightable.
• The case raises fundamental legal questions about authorship, fixation, and copyright in works of nature.

Promoted as “living art,” Wildflower Works received critical and popular acclaim, and for a while Kelley and a group of volunteers tended the vast garden, pruning and replanting as needed.

• The district court found Wildflower Works ineligible for copyright due to a lack of originality, while simultaneously acknowledging it as both a painting and a sculpture.
• The court mistakenly equated originality with novelty by arguing the work was unoriginal simply because someone had previously conceived of arranging wildflowers in ellipses.
• A work does not need to be novel to be original; Wildflower Works was clearly not copied and possessed a sufficient creative spark.
• The true legal barrier to copyright is that a living garden lacks the necessary authorship and stable fixation.
• Authorship is strictly a human endeavor, meaning works whose forms are shaped by natural forces rather than human creation cannot be copyrighted.

Finally, authorship is an entirely human endeavor. Authors of copyrightable works must be human; works owing their form to the forces of nature cannot be copyrighted.

• Even if the artistic community views a living garden as conceptual art, copyright law requires distinct limits regarding authorship and fixation.
• Gardens are planted and cultivated rather than authored, with most visual and sensory elements originating from nature rather than human intellect.
• The inherent changeability and continuous life cycle of living plants prevent a garden from satisfying the legal requirement of fixation.
• A written garden plan, diagram, or drawing can be copyrighted because it is a stable embodiment of intellectual property.
• The essential nature of a garden is its dynamic vitality and perpetual change rather than fixed permanence.

The essence of a garden is its vitality, not its fixedness.

• The Ninth Circuit and the U.S. Copyright Office refuse to recognize copyright claims by non-humans, as demonstrated in the famous monkey selfie case.
• Courts found that the Copyright Act is silent on non-human standing and refuse to presume Congress intended to grant it.
• Dr. Stephen Thaler challenged these traditional boundaries by attempting to register a copyright for an image generated by his AI system, the Creativity Machine.
• The rise of generative artificial intelligence brings urgent questions regarding property rights, economic growth, and creative innovation.
• Determining authorship for machine-generated works forces a reexamination of the fundamental policy goals underlying the copyright statute.

While handling the camera, the monkey repeatedly tripped the shutter and captured several very striking “selfies,” including the one shown in Figure 45.

• Dr. Thaler submitted a copyright application listing an artificial intelligence system called the Creativity Machine as the sole author of a work.
• The United States Copyright Office denied the application based on its longstanding human-authorship requirement.
• Federal courts affirmed the denial, ruling that the Copyright Act of 1976 requires all eligible works to be created by a human.
• Statutory interpretation of the Copyright Act reveals that provisions consistently treat authors as human beings and machines merely as tools.
• Because the Creativity Machine is not human, the court concluded it cannot hold legal status as an author.

Numerous Copyright Act provisions both identify authors as human beings and define 'machines' as tools used by humans in the creative process rather than as creators themselves.

• Human authorship is strictly required for copyright registration under the law.
• The Copyright Act's ownership provision relies on the author's legal capacity to hold property.
• Exclusive rights vest immediately in the author upon the creation of the work.
• Entities that lack the legal capacity to own property cannot qualify as authors under the statute.
• Copyright duration is explicitly tied to the lifespan of a human author, lasting for their life plus 70 years.

Second, the Copyright Act limits the duration of a copyright to the author’s lifespan or to a period that approximates how long a human might live.

• The Copyright Act uses terms like lifespans and inheritance provisions that do not apply to machines.
• Copyright transfers require signatures and legal capacity, which machines cannot provide.
• Machines lack nationality, domiciles, and the intentions required for creating joint works.
• Statutory definitions consistently frame computers and machines as tools assisting authors rather than as authors themselves.
• Taken as a whole, the text and structure of the Copyright Act strongly imply that humanity is a necessary condition for authorship.

Machines, needless to say, have no surviving spouses or heirs.

• As computer technology advanced in the 1960s, the Copyright Office recognized that emerging questions of authorship would hinge on whether a work is fundamentally human-authored or merely computer-assisted.
• In 1973, the Copyright Office formally established the requirement that copyrightable works must owe their origin to a human agent.
• Congress created CONTU in 1974 to study the intersection of copyright law and new technologies, concluding that computers are merely inert tools rather than authors.
• When Congress enacted the Copyright Act of 1976 and subsequent amendments, it maintained the established understanding that computers are instruments directed by humans.
• Legal analysis of the statutory text rejects broad dictionary definitions in favor of historical congressional intent and well-settled agency interpretations requiring human authorship.

The computer, like a camera or a typewriter, is an inert instrument, capable of functioning only when activated either directly or indirectly by a human.

• Identical statutory words within the Copyright Act are presumed to share the same meaning.
• Substituting machines for authors in copyright provisions creates nonsensical legal concepts like machine children and death.
• The work-made-for-hire provision legally considers hirers as authors through specific statutory transfer mechanics rather than direct definition.
• Copyright law prioritizes public benefit over rewarding the creator.
• AI-assisted works remain eligible for copyright as long as the underlying author is a human being.

If “machine” is substituted for “author,” the Copyright Act would refer to a machine's “children,” a machine's “widow,” a machine's “domicile,” and a machine's “nationality.”

• Dr. Stephen Thaler sought copyright protection for a work generated entirely by his AI system, the Creativity Machine, rather than claiming human-assisted creation.
• Current copyright law requires human authorship, which courts have consistently upheld by ruling that authors must be human beings rather than animals or machines.
• The court noted that denying copyrights to purely machine-made works does not reduce original creation because machines do not respond to economic incentives.
• While future advanced AI might possess human-like consciousness and respond to incentives, addressing that possibility is a matter for Congress.
• Policy arguments regarding whether the human authorship requirement stymies creativity must be directed to Congress rather than the judiciary.

That is because Dr. Thaler listed the Creativity Machine as the sole author of the work before us, and it is undeniably a machine, not a human being.

• Section 101 of the Copyright Act defines a joint work as a creation by two or more authors intended to be merged into a unitary whole.
• The statute remains intentionally silent on the exact nature of joint-authorship relationships, leaving these rules to court-made law.
• By default, co-owners of a copyright are treated as tenants in common with equal undivided interests and independent licensing rights, subject to profit accounting.
• Co-authors have the legal flexibility to alter these default ownership and licensing rules through explicit prior agreements.
• In Karen Erickson v. Trinity Theatre, a dispute arose over whether theatrical plays constituted joint works created through simple collaboration or required independently copyrightable contributions.

Under the bill, as under the present law, coowners of a copyright would be treated generally as tenants in common, with each coowner having an independent right to use or license the use of a work, subject to a duty of accounting to the other coowners for any profits.

• Courts use two main tests to evaluate joint authorship contributions: Professor Nimmer's de minimis test and Professor Goldstein's copyrightability test.
• Nimmer's test requires only the final combined product to be copyrightable, but courts largely reject it because it protects bare ideas and creates ambiguity.
• Goldstein's test requires each individual collaborator's contribution to be independently copyrightable as original expression.
• The text supports Goldstein's copyrightability requirement, noting that the Copyright Act defines a joint work as being prepared by two or more 'authors'.
• Goldstein's test advances creativity by ensuring the free exchange of unprotectable ideas while providing predictable, reliable answers to prevent post-contribution authorship disputes.

Because the creative process necessarily involves the development of existing concepts into new forms, any restriction on the free exchange of ideas stifles creativity to some extent.

• Trinity Theatre actors failed to establish joint authorship because their contributions could not be independently copyrighted.
• The law dictates that ideas, refinements, and suggestions standing alone are not subjects of copyrights.
• Jefri Aalmuhammed made extensive contributions to the film Malcolm X, including script revisions, directing, and translating.
• Despite his significant creative and historical input, Aalmuhammed lacked a written contract and was only credited as an Islamic Technical Consultant.
• Aalmuhammed sought official recognition as a co-creator, co-writer, and co-director of the movie after its release.

Ideas, refinements, and suggestions, standing alone, are not the subjects of copyrights….

• The Copyright Office issued a registration certificate while warning of conflicting previous film registrations.
• Aalmuhammed filed a lawsuit against Spike Lee, his production companies, and Warner Brothers in November 1995.
• The legal action sought declaratory relief and a financial accounting under the Copyright Act.
• The district court ultimately dismissed all of Aalmuhammed's claims through Rule 12(b)(6) and summary judgment.
• Aalmuhammed argued he was a co-author of a joint work, making him a co-owner of the entire copyright for the movie Malcolm X rather than just his specific contributions.

Aalmuhammed claimed that the movie Malcolm X was a “joint work” of which he was an author, thus making him a co-owner of the copyright.

• Aalmuhammed claimed joint authorship of the film Malcolm X under the Copyright Act.
• A joint work requires a copyrightable work, multiple authors, and the intent to merge contributions.
• Evidence showed Aalmuhammed made independently copyrightable contributions to the film's script and scenes.
• However, the court established that making a valuable contribution is not the same as being an author.
• The traditional definition of an author becomes difficult to apply to large collaborative projects like movies.

We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.

• Determining the true author of a film is complex because movies are collaborative projects involving numerous creative contributors.
• The Supreme Court case Burrow-Giles Lithographic Co. v. Sarony established that an author is the 'master mind' who superintends and originates the work.
• Merely making a substantial creative contribution, such as controlling lighting or casting, is insufficient to establish legal authorship.
• In the context of cinema, authorship typically rests with individuals having overarching artistic control, such as directors, producers, or screenwriters.
• Legal criteria for joint authorship require both the exercise of overarching control and objective manifestations of a shared intent to be coauthors.

It is striking in Malcolm X how much the person who controlled the hue of the lighting contributed, yet no one would use the word “author” to denote that individual’s relationship to the movie.

• Subjective intent alone is insufficient for establishing co-authorship and risks enabling fraud between collaborators.
• Contracts serve as the best objective evidence of shared intent, but courts must otherwise examine factual creative relationships.
• Control over the final work is a critical factor, as demonstrated by Spike Lee's ultimate authority over Aalmuhammed's contributions.
• Neither party demonstrated any objective manifestation or prior indication of an intent to be co-authors during production.
• A strict co-authorship threshold protects the constitutional policy of promoting the arts by allowing creators to consult others without losing sole ownership.

Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work.

• Famous creative duos raise questions about whether a single 'master mind' can be identified in collaborations.
• Courts differ on whether joint authorship requires a specific intent by participants to enter into a co-authorship relationship.
• The statutory definition and legislative history suggest the primary requirement is merely the intent to merge contributions into a unitary whole.
• Some circuits, like the Second and Seventh, strictly require that all putative co-authors intend to be joint authors to share equal rights.
• Other circuits, like the Ninth, treat the objective manifestation of intent to be co-authors as only one of several factors, often prioritizing the level of control exercised.

Can you identify a “master mind” in any of these duos? Does that concept fit with the reality of creative collaboration?

• The consideration of co-authorship intent prevents minor contributors from gaining equal co-ownership without clear corresponding intent from major contributors.
• Requiring a shared intent to be co-authors helps keep the number of authors of a complex work to a manageable level.
• A categorical requirement of shared intent is not explicitly supported by the statute's text or its legislative history.
• The Restatement suggests that concerns over minor contributors are better addressed by evaluating whether the individual truly authored the unitary whole.
• Legal scholars debate whether judicial intent requirements adequately address problematic trends like granting co-authorship credit for weak claims.

Mark Lemley and 'Oliver Wendell Holmes, Jr.' note an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or 'interpolation') credit to the claimant, no matter how weak the claim, and even if they are dead.

• Equal co-ownership serves as the default rule for co-authors despite potential disparities in the magnitude and value of individual contributions.
• Empirical research indicates that equal ownership shares in jointly written songs can actually enhance the overall quality of creative output.
• The Copyright Act of 1976 dictates that copyright ownership initially vests in the human creators who translate ideas into fixed expressions.
• Works made for hire represent a major exception where employers or commissioning parties are legally considered the authors.
• The statutory definition of a work made for hire encompasses traditional employee tasks and specific commissioned works requiring a signed written agreement.

Empirical scholarship also suggests that, at least for jointly written songs, co-ownership by equal shares actually improves the quality of creativity.

• The Community for Creative Non-Violence (CCNV) planned a display for the 1985 Washington, D.C., Pageant of Peace to highlight homelessness.
• Members conceived a modern Nativity scene titled 'Third World America' featuring contemporary homeless figures on a steam grate.
• Mitch Snyder of CCNV contacted Baltimore sculptor James Earl Reid to create the life-sized figures.
• Subsequent legal analysis examines copyright law regarding works made for hire and the definition of an employee.
• The text introduces foundational cases that explore authorship, ownership, and the scope of employment within copyright disputes.

A sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate.

• CCNV and sculptor James Earl Reid agreed to create a homeless-themed sculpture called Third World America under tight budget and time constraints.
• The sculpture's material was changed to Design Cast 62 to save money and time, and Reid based the figures on homeless people sleeping on steam grates.
• CCNV provided financial installments, visited Reid to coordinate aspects like the shopping cart, and helped construct the base.
• After the statue was displayed and returned for minor repairs, a dispute arose over whether it could withstand a national tour.
• Reid refused to return the sculpture in March 1986 and filed a certificate of copyright registration in his own name.
• Snyder and CCNV filed a competing copyright registration and commenced legal action to determine ownership and the return of the sculpture.

In March 1986, Snyder asked Reid to return the sculpture.

• The initial district court reasoned that CCNV owned the sculpture because they directed its creation and acted as the motivating force.
• The D.C. Circuit Court reversed this decision, concluding that Reid was an independent contractor and thus owned the copyright.
• The Supreme Court granted certiorari to resolve ongoing conflicts among the Courts of Appeals regarding the work-for-hire provisions.
• The Copyright Act of 1976 dictates that copyright ownership initially vests in the author who translates an idea into a fixed expression.
• An exception exists for works made for hire, granting authorship rights to the employer unless a written agreement states otherwise.

The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that Reid owned the copyright because “Third World America” was not a work for hire….

• The central legal question is whether the work qualifies as one prepared by an employee within the scope of employment.
• Four distinct interpretations of employee status have emerged in the absence of statutory definitions.
• Statutory interpretation dictates that undefined common-law terms like employee should carry their established agency law meanings.
• The use of the term scope of employment strongly suggests Congress intended to incorporate conventional master-servant agency doctrine.
• Petitioners' proposed right to control tests clash with the statutory text and distort the dichotomy between different work-for-hire categories.

It is, however, well established that where Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.

• Work for hire status under section 101 depends on the hiring party's actual control of the product rather than just the right to control it.
• The court found no statutory support for distinguishing between commissioned works that receive actual supervision and those that do not.
• The language and structure of the Act fail to support either the right to control or the actual control approaches.
• A work for hire can be created through two mutually exclusive means: one designated for employees and another for independent contractors.
• Ordinary canons of statutory interpretation dictate that the classification of a hired party must rely on agency law.

The structure of § 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors...

• Petitioners' construction of the work for hire provisions threatens Congress's goal of enhancing predictability and certainty in copyright ownership.
• An actual control test makes advance planning difficult because parties cannot know until late in the process if a work falls under § 101(1).
• Applying common law agency principles determines whether a hired party is an employee or an independent contractor based on multiple non-determinative factors.
• Examining the specific circumstances reveals that Reid was an independent contractor rather than an employee of CCNV.
• Factors such as Reid supplying his own tools, working in his own studio, and having discretion over his hours heavily outweighed CCNV's direction.

If they guess incorrectly, their reliance on work for hire … may give them a copyright interest that they did not bargain for.

• The Court rejected the idea that the term employee in the Copyright Act refers exclusively to formal or salaried workers.
• Because Reid was classified as an independent contractor, the work-for-hire provisions did not automatically grant authorship to CCNV.
• CCNV could still potentially be considered a joint author if their contributions were intended to be merged into a unitary whole.
• Empirical analysis suggests that tax treatment, benefits, and payment methods are among the most critical factors in determining employment status.
• Subsequent litigation outcomes and settlement agreements ultimately divided ownership of the physical sculpture and copyright permissions between the parties.

While the CCNV case was pending on remand, Mitch Snyder died by suicide.

• The American Law Institute adopted the Restatement (Third) of Agency in 2005.
• The updated Restatement removed the traditional factor list previously used in CCNV to determine employment status.
• It introduced a new standard focusing on whether a principal controls or has the right to control the manner and means of work.
• This shift raises questions about whether past legal outcomes would change and if the standard fits modern employment.
• Avtec Systems, Inc. is a company that markets space-related computer services and products to the federal government.
• Jeffrey G. Peiffer started as a part-time employee and became a full-time staff member implementing computer simulations.

Do you think the result in CCNV would come out any differently under the Restatement’s revised formulation?

• Avtec purchased a Macintosh in 1984 which inspired employee Peiffer to begin developing an orbital simulation program.
• Peiffer received a bonus and company endorsement for the program, which was used as a marketing and contract tool.
• Avtec later trademarked the program and bound employees to confidentiality policies regarding proprietary information.
• Peiffer secretly granted an exclusive third-party marketing license to another company, generating significant revenue without Avtec's knowledge.
• Avtec registered a copyright for the program in March 1992 and promptly sued Peiffer for copyright infringement and breach of fiduciary duty.

Unbeknownst to Avtec, Peiffer had met Paul F. Kisak early in 1989 and granted Kisak’s company, Kisak-Kisak, Inc. (KKI) an exclusive license to market the Program.

• Defendants counterclaimed for copyright infringement after a legal dispute regarding a software program.
• The court ruled that Peiffer owned the copyright because the program was not created within the scope of his employment.
• Copyright ownership typically vests in the author unless the work is classified as made for hire by an employee.
• Common-law agency principles and the Restatement of Agency govern whether an employee's conduct falls within the scope of employment.

These rights presumptively vest in the author—the one who translates an original idea into a fixed, tangible means of expression.

• The creation of the Program was determined to be of the kind of work Peiffer was employed to perform.
• Copyright does not automatically vest in the employer simply because the work arises from the employee's activities.
• The district court found that version 2.05 was developed outside authorized limits and without the purpose to serve Avtec.
• The district court relied on a utilitarian distinction between software versions, noting the later version was a stand-alone commercial package.
• The appellate court concluded the district court's resolution of the scope-of-employment issue was flawed by a misapprehension of legal principles and remanded the case for reconsideration.

Relying on this utilitarian distinction between two versions of the program, the court expressly confined its decision on the question of copyright ownership to 'the current 2.05 version' of the Program.

• Avtec relies on the Restatement (Second) of Agency to test whether an employee's actions fall within the scope of employment.
• The modern realities of telecommuting and flexible schedules challenge the traditional literal applications of historical agency tests.
• The American Law Institute's Restatement (Third) of Agency introduces a revised test focusing on assigned work and employer control.
• Alternative legal doctrines, such as implied licenses, can protect an employer's right to use code even if it was created outside the scope of employment.
• The Copyright Act defines a second category of work-for-hire known as specially ordered or commissioned works.
• Commissioned works must fall into one of nine specific statutory categories to qualify for work-for-hire treatment.

What do you think would have happened if Avtec had come out in favor of the defendants?

• Certain categories of commissioned works are exempted from termination rights to prevent chaos and unfairness to publishers.
• For a commissioned work to qualify as a work made for hire, a written agreement must be signed by both parties.
• A circuit split exists regarding the timing of the writing requirement, specifically between the Second and Seventh Circuits.
• The Second Circuit permits retroactive writings that confirm prior implicit or explicit agreements.
• The Seventh Circuit and the Restatement of Copyright argue that the writing must precede creation to protect the author.

...permitting terminations of grants of rights to such works would cause chaos.

• The Second Circuit requires explicit mentions of works made for hire in agreements, while the Ninth Circuit does not demand talismanic words.
• The Restatement of Copyright specifies that agreements must expressly state intent, such as naming the hiring party as the author.
• Language focusing purely on copyright ownership transfers, such as assignments or sales, is generally insufficient to satisfy work-for-hire requirements.
• There is a persistent legal dispute over whether commissioned sound recordings qualify as works made for hire under statutory categories.
• A 1999 legislative attempt to add sound recordings to the work-for-hire provisions was swiftly repealed following a major uproar by musicians.

However, less than one year later, and after an uproar led by musicians, sound recordings were removed from the provision.

• Copyright law has historically required specific procedural formalities, such as registration and notice, for protection to exist or continue.
• Legislative changes, culminating in the 1989 Berne Convention accession, largely transitioned the United States to an unconditional copyright system.
• Under current law, copyright arises automatically upon fixation, making traditional formalities voluntary rather than mandatory prerequisites.
• Despite these relaxations, formalities remain relevant because older works are still governed by prior rules and strong incentives for compliance persist.
• Understanding the historical shift from conditional to unconditional copyright requires examining rules across the 1909 Act, 1976 Act, and Berne Convention eras.

Until now, our study of copyright law has focused principally on metaphysical matters like originality, the difference between idea and expression, and the nature of authorship.

• Copyright formalities can disadvantage artists who are unaware of compliance requirements, especially foreign creators accustomed to different international standards.
• Requiring formalities increases the financial cost of obtaining copyright protection and hinders international legal harmonization.
• Conversely, a centralized copyright registry helps third parties easily determine ownership and licensing information for intangible works.
• Unlike physical property, copyrighted expressions lack a unique physical existence that clearly indicates ownership through mere possession.
• Formalities allow authors to consciously distinguish between works they want to protect and those they do not.

Unlike real estate or personal property, the property embodied in copyright has no unique physical existence.

• Before January 1, 1978, American federal copyright protection began with publication rather than fixation.
• Unpublished works were automatically protected by state law until the moment of publication.
• The 1834 Supreme Court case Wheaton v. Peters established that publication divested common law protection.
• Under the 1909 Act, failure to comply with statutory formalities upon publication pushed works into the public domain.
• The 1976 Act shifted federal protection to the moment of fixation, making publication less central but still relevant for specific provisions.

The implication is that one’s published work would (exit state law protection and) move into the public domain if one did not comply with all statutory formalities.

• The 1909 Copyright Act failed to explicitly define publication, offering only a sparse statutory clue regarding the earliest date copies were distributed.
• Without clear statutory definitions in the 1909 Act, courts were forced to independently craft their own rules for determining when publication occurred.
• The 1976 Act later provided a clear definition under Section 101, specifying that distribution, sale, or rental constitutes publication.
• Under the 1976 Act, offering copies for further distribution or public display counts as publication, but a mere public performance or display does not.
• The Estate of Martin Luther King, Jr. sued CBS for unauthorized use of the 'I Have a Dream' speech in a documentary.
• The district court initially ruled that Dr. King's speech constituted a general publication placing it in the public domain, a decision the Eleventh Circuit reversed.

A public performance or display of a work does not of itself constitute publication.

• Dr. Martin Luther King, Jr. delivered his historic "I Have a Dream" speech during the 1963 March on Washington to a massive live and broadcast audience.
• Dr. King subsequently secured federal copyright registration for the speech under the Copyright Act of 1909 and successfully defended it against unauthorized sales.
• Decades later, CBS used extensive footage of the speech in a documentary without seeking permission or paying royalties to the Estate.
• The district court initially ruled that the massive public dissemination of the speech placed it directly into the public domain, stripping away copyright protection.
• The central legal issue on appeal is whether Dr. King's live delivery constituted a general publication that forfeited his statutory copyright.

The Speech contained the famous utterance, "I have a dream ...," which became symbolic of the civil rights movement.

• The legal definition of publication is esoteric and distinct from its lay meaning, dictating whether a common law copyright is divested.
• A general publication makes a work available to the public at large without restrictions, whereas a limited publication shares content with a select group for a limited purpose.
• Case law establishes that merely performing a work, regardless of audience size, does not constitute a general publication.
• General publications occur specifically when tangible copies are distributed for public control or when a work is displayed allowing unrestricted copying.
• Distributing a work to the news media for reporting a newsworthy event is considered a limited publication rather than a general one.
• Broadcasting Dr. King's speech and providing it to the news media did not amount to a general publication that stripped away copyright protection.

A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent.

• The court emphasizes that in a summary judgment posture, it must disregard potentially dispositive evidence where genuine issues of material fact exist.
• Undisputed facts are limited to the oral delivery of the speech and the successful efforts by organizers to secure extensive radio, television, and press coverage.
• Disputed evidence regarding the accessibility of an advance text in the press tent and the extemporaneous nature of Dr. King's remarks must be explored by the district court.
• The district court previously held that the overwhelming public nature and fervent intent to draw press attention took the speech outside the 'performance is not a publication' doctrine.
• Case law indicates that neither a huge audience nor historical newsworthiness are significant factors in determining general versus limited publication.

Certainly, the Speech was one of a kind—a unique event in history.

• The district court relied on a precedent involving a Picasso sculpture to determine whether a general publication had occurred.
• The appellate court found the sculpture analogy inappropriate for summary judgment due to key factual differences regarding public distribution.
• Genuine issues of material fact regarding whether a general publication occurred led the court to reverse the summary judgment.
• A separate opinion argued that delivering the speech was merely a performance, which cannot constitute publication regardless of audience size.

performance simply cannot constitute a publication regardless of (1) the size of the audience involved, or (2) efforts to obtain widespread contemporary news coverage

• The legal concept of publication has been seriously distorted and continues to trouble copyright law.
• Courts historically created categories of general and limited publication to protect authors from inadvertently forfeiting their federal and state copyrights through strict formalities.
• Evolving technologies of dissemination, from print to television and the internet, have made it increasingly difficult to define what constitutes a publication.
• The 1976 Act's legislative history recognized publication as the law's most serious defect because it no longer served as a practical dividing line between protections.
• Copyright notice requirements historically served multiple purposes, including identifying owners, showing publication dates, and placing unwanted material into the public domain.

The concept of publication has been seriously distorted and now bedevils much of the law of copyright.

• The 1909 Act strictly conditioned copyright protection on affixing proper notice upon publication, risking forfeiture into the public domain if neglected.
• Valid notice under the 1909 Act required specific elements including a copyright symbol or word, the owner's name, and the publication date for certain works.
• The 1976 Act maintained notice requirements but introduced more flexible placement rules and allowed creators a five-year window to cure defective notices.
• U.S. accession to the Berne Convention prohibited mandatory formalities, transforming copyright notice from a strict requirement into an optional practice.
• Post-Berne legislation incentivized voluntary notice by stripping innocent infringers of certain damage mitigation defenses if proper notice was displayed.

Works lacking valid notice upon publication moved into the public domain.

• Specialized notice rules exist for collective works, allowing a single compliant notice to cover individual contributions.
• The evolution of notice rules shifted copyright from an opt-in system to an opt-out system that protects works automatically.
• Copying works without notices can be dangerous because works lacking notice are no longer presumed to be in the public domain.
• Orphan works, whose owners cannot be found even after diligent searches, created acute legal challenges during projects like Google Book Search.
• The Copyright Act contains no legal disincentive, such as fines, for false claims of ownership over public domain materials, a phenomenon known as copyfraud.

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution.

• Copyright registration has historically provided a written record of ownership for third parties, transitioning from a strict requirement to a largely optional process.
• Under the 1909 Act, registration was necessary to secure a renewal term and prevent a work from falling into the public domain.
• The Copyright Renewal Act of 1992 made renewals automatic while maintaining incentives such as broader derivative work rights.
• Both the 1909 and 1976 Acts established registration as a prerequisite for maintaining infringement actions, with modern exceptions for certain foreign works.
• Registration offers significant incentives, including eligibility for statutory damages, attorney fees, and prima facie validity of the copyright.
• When copyrightability is uncertain, the Copyright Office may use a Rule of Doubt to register the work, leaving the final determination to the courts.

That said, if copyrightability is uncertain, the Copyright Office will register the work under a “Rule of Doubt” and rely on subsequent litigation to sort out any problems.

• Copyright registration requirements evolved significantly across the 1909 Act, the 1976 Act, and Post-Berne periods.
• Registration rules serve as a prerequisite to filing a lawsuit for copyright infringement while providing benefits like statutory damages.
• The 1988 legislative changes helped the United States comply with Berne Convention standards regarding copyright formalities for foreign claimants.
• The Supreme Court resolved a circuit split by ruling that copyright registration occurs when the Copyright Office officially registers a claim.
• Empirical studies of millions of registered works reveal notable demographic patterns among copyright authors.
• Scholars argue that the limited mechanisms for canceling copyright registrations leave significant errors on the public registry.

Although United States citizens were somewhat disadvantaged by Congress’s action, at least no non-U.S. Berne claimants could contend that the United States was setting up impermissible formal roadblocks to the protection of their copyrights.

• Copyright deposit is closely linked to registration and provides copies of works to the Library of Congress.
• The 1909 Act required prompt deposit as a prerequisite to infringement suits, penalizing non-compliance with copyright forfeiture and fines.
• The 1976 Act relaxed penalties, replacing copyright forfeiture with civil fines for failing to meet deposit demands.
• Following the Berne Convention, deposit became a prerequisite for infringement lawsuits exclusively for U.S. works.
• Special deposit rules exist for software, allowing applicants to submit only partial source code to protect trade secrets.

Rather than require deposit of the entire work, as is usually the case when registering copyright in the work, the Copyright Office permits a copyright applicant to submit only small portions of the program and keep the rest secret.

• Mandatory physical book deposit requirements can constitute unconstitutional property takings.
• Allowing copyright abandonment could potentially resolve constitutional issues with mandatory deposits.
• Transfer of copyright ownership documents can be recorded in the Copyright Office for constructive notice.
• Unrecorded copyright transfers are void against subsequent bona fide purchasers who record first.
• Recordation requirements for infringement lawsuits evolved significantly across the 1909 Act, 1976 Act, and Post-Berne periods.

the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them, [so] the demand to forfeit property cannot be justified as the conferral of a benefit—i.e., copyright protection—in exchange for property.

• The 1909 Act mandated that English-language and domestic-origin books be printed within the United States to receive copyright protection.
• Courts interpreted the domestic manufacture requirement liberally to prevent widespread copyright invalidations, as seen in Hoffenberg v. Kaminstein.
• The 1955 Universal Copyright Convention allowed foreign authors printing abroad to bypass the strict U.S. manufacture provision.
• A variation of the manufacture requirement persisted in the 1976 Act until it officially expired on July 1, 1986.
• Prior to Berne Convention accession, missed formalities caused copyright loss, but the 1994 Uruguay Round Agreement Act restored protection for qualifying foreign works.

As can be seen from the previous sections, before U.S. accession to the Berne Convention, failure to comply with copyright formalities led to the loss of U.S. copyright protection.

• Copyright protection for certain foreign works was restored on January 1, 1996, matching the term they would have received had they never entered the public domain.
• Prominent works such as Tolkien's Lord of the Rings and Picasso's Guernica were affected by this copyright restoration.
• Third parties who previously relied on these works being in the public domain were granted specific protections and immunity periods.
• Copyright owners must provide formal notice of intent to enforce and allow a twelve-month immunity period before suing reliance parties.
• The constitutionality of the restoration statute, section 104A, was challenged and reviewed by the U.S. Supreme Court in Golan v. Holder.
• Subsequent sections explore the evolving frameworks of copyright duration under the 1909 and 1976 Acts.

Pursuant to § 104A, copyright was restored to some very prominent works, including J.R.R. Tolkien’s Lord of the Rings trilogy, Pablo Picasso’s Guernica, Fritz Lang’s Metropolis, the works of M.C. Escher, Sergei Prokofiev’s Peter and the Wolf, the Pippi Longstocking books, and Alfred Hitchcock’s films including The Man Who Knew Too Much.

• Copyright duration has undergone continuous expansion through legislative acts since 1790.
• The 1909 Act provided a 28-year initial term with an option for a 28-year renewal.
• Subsequent legislation like the 1976 Act and the 1998 Sonny Bono Act progressively extended total possible protection for 1909 Act works to 95 years.
• Congress made copyright renewals automatic in 1992, saving many works from accidental expiration while leaving already expired works in the public domain.
• The 1976 Act shifted the starting point of protection to fixation and tied duration to the author's lifespan plus a set number of years.

Before then, many copyright owners had accidentally lost the renewal term by neglecting to register copyright in time.

• Copyright for works created after January 1, 1978, lasts for the author's life plus 70 years.
• The 1976 Act introduced complex challenges for specific categories like joint, anonymous, and made-for-hire works.
• Calculating the lifetime of a business entity or an unknown pseudonymous author creates unique legal ambiguities.
• Unpublished works created before the 1976 Act raised questions about whether older pieces should immediately enter the public domain.
• Special duration rules were created to address these categorization complexities within the copyright law.

For works made for hire, how does and should one compute the lifetime of a business entity?

• Copyright terms generally endure for 95 years from publication or 120 years from creation.
• The 1976 Act brought previously unpublished works under federal statutory law instead of infinite state protection.
• Congress established minimum protection terms, ensuring unpublished works did not expire before December 31, 2002.
• Publishing a previously unpublished work before the end of 2002 granted an additional 45 years of protection.
• Section 302(e) establishes a legal presumption of the author's death after specific time periods to clarify public domain status.
• Copyright terms now consistently run to the end of the calendar year rather than expiring on the exact publication anniversary.

Congress also provided an additional incentive to publish works created but unpublished as of January 1, 1978, by granting a potential 45 years of additional protection if the work is published on or before December 31, 2002.

• In 2018, Congress extended copyright-like protections to pre-1972 sound recordings.
• Specific duration rules depend heavily on the year of first publication for these older sound recordings.
• A structured transition period was established ranging from 5 to 15 years based on publication dates.
• Table 6 outlines various general duration rules under the 1909 Act, 1976 Act, and the Music Modernization Act.
• Practical exercises are provided to help calculate copyright expiration dates under complex hypothetical scenarios.

In 2018, Congress granted copyright-like protection to pre-1972 sound recordings, and it created specific duration rules for this category of works: 95 years from the first publication, plus a transition period depending on the year of first publication.

• Congress shifted copyright duration from a fixed term to a life-plus-years structure in the 1976 Act.
• This change was driven by longer author life expectancies, international conformity, and simplification.
• Aligning with global standards aimed to benefit American authors and prevent international resentment.
• The new structure meant all of a single author's copyrights would expire simultaneously upon death plus a set period.
• Despite simplification, the shift introduced complications such as tracking authors' death dates and handling anonymous works.

This disparity had already provoked considerable resentment and some proposals for retaliatory legislation.

• Copyright duration is one of the most visible components of copyright law for authors and serves as a vital incentive for creation.
• By tying copyright protection to the author's lifetime, the law appeals to an author's personhood interests and reputation building.
• A life-plus-years term acts as an expressive incentive that is psychologically more appealing to creators than a statistically equivalent fixed term.
• Although resulting in unequal protection lengths for similarly situated works, this differential treatment successfully prioritizes authorial personhood.
• While lifetime protection aligns with expressive incentive theory, extending copyright protection post-mortem remains a subject of debate.

In fact, Professors Avishalom Tor and Dotan Oliar show, in an experiment, that individuals prefer a life-plus-years term like Congress implemented to a comparable fixed term.

• Descendants of creators are often poor custodians who hinder the creative process.
• Congress extended copyright terms repeatedly, often citing international harmonization with the European Union.
• The 1998 extension was nicknamed the Mickey Mouse Protection Act due to Disney's lobbying efforts.
• The Supreme Court case Eldred v. Ashcroft evaluated the constitutionality of Congress granting a 20-year copyright extension.
• The text questions whether ongoing term extensions fit copyright's constitutional purpose to promote progress.

This act was also sometimes called 'The Mickey Mouse Protection Act,' because the Walt Disney Company had been lobbying for this term extension to delay the entry into the public domain of Mickey Mouse...

• Petitioners argue that the CTEA violates the Copyright Clause and First Amendment by retroactively extending existing copyright terms.
• The 1976 Copyright Act extended protection to life plus 50 years, aligning the United States with international standards.
• Petitioners do not challenge the life-plus-70-years timespan for new works, but rather the enlargement of terms for already published works.
• Historically, Congress has repeatedly applied copyright term extensions to both existing and future works, starting with the 1790 Act.
• The Supreme Court rejected the petitioners' challenges, ruling that Congress acted within its constitutional authority by placing existing and future copyrights in parity.

Whether 50 years is enough, or 70 years too much, is not a judgment meet for this Court.

• The Copyright Term Extension Act harmonized United States copyright durations with the European Union by setting terms to life plus 70 years for individuals and 95 years for corporate or anonymous works.
• The CTEA applies its extended terms retroactively to existing copyrights as well as prospectively to future works, mirroring historical practices from previous copyright acts.
• Petitioners challenged the constitutionality of the CTEA under both the Copyright Clause and the First Amendment, arguing that extended terms violate the 'limited Times' restriction.
• Lower courts ruled in favor of the Attorney General, affirming that the CTEA's terms are limited rather than perpetual and that copyright does not inherently violate free speech.
• The Supreme Court granted certiorari to determine whether Congress has the power to extend existing copyrights and whether doing so violates the First Amendment, ultimately answering both in the negative.

Petitioners’ argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever “fixed” or “inalterable.”

• A limited timespan applied to future copyrights does not cease to be limited when applied to existing copyrights.
• History reveals an unbroken congressional practice of granting term extensions to existing copyrights for evenhanded protection.
• The First Congress applied federal copyright protections to existing and future works alike.
• The CTEA was heavily influenced by a 1993 European Union directive establishing a copyright term of life plus 70 years.
• Extending the US term ensured American authors receive matching copyright protections and incentives in Europe.

To comprehend the scope of Congress’ power under the Copyright Clause, a page of history is worth a volume of logic.

• The Court concluded that the CTEA is a rational legislative enactment and deferred to congressional judgment regarding copyright policy.
• The petitioners argued that extending existing copyrights creates effectively perpetual copyrights through repeated extensions.
• The Court disagreed, noting that the CTEA does not cross a constitutionally significant threshold compared to historical copyright acts.
• Petitioners claimed that Congress cannot extend an existing copyright without receiving new consideration from the author.
• This main theme was pursued through arguments that the CTEA overlooks originality, fails to promote progress, and ignores the quid pro quo.

Petitioners contend that even if the CTEA’s 20-year term extension is literally a “limited Tim[e],” permitting Congress to extend existing copyrights allows it to evade the “limited Times” constraint by creating effectively perpetual copyrights through repeated extensions.

• Petitioners argue based on Feist that once a work is published, it loses its originality and cannot support a copyright extension.
• The Court clarifies that Feist addressed the threshold requirement of copyrightability and creative spark, not the duration of protection.
• Petitioners contend that the CTEA fails to promote the Progress of Science because extending existing terms merely rewards old works.
• The Court emphasizes that determining how best to pursue the objectives of the Copyright Clause is primarily a task for Congress.
• Petitioners also assert that the Copyright Clause contains a strict quid pro quo requirement that is violated by extending existing copyrights without new consideration.

The CTEA’s extension of existing copyrights categorically fails to “promote the Progress of Science,” petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created.

• Justice Stevens' view that author rewards are secondary understates copyright's true purpose.
• The economic philosophy of the Copyright Clause ties individual personal gain directly to advancing public welfare.
• Copyright law intentionally celebrates the profit motive to proliferate knowledge and culture.
• Personal rewards and public progress are complementary rather than mutually exclusive goals.
• Providing individuals with incentives for private gain is precisely how copyright serves the public good.

The profit motive is the engine that ensures the progress of science.

• The Copyright Clause permits Congress to extend copyright terms for both existing and future holders.
• The CTEA's extension of existing copyrights faces no constitutional impediments under the Copyright Clause.
• Copyright's limited monopolies are compatible with First Amendment principles because they were adopted close in time by the Framers.
• The idea/expression dichotomy ensures that facts and ideas are instantly available for public exploitation upon publication.
• The fair use defense provides critical latitude for criticism, comment, news reporting, teaching, scholarship, and parody.
• Traditional copyright protections do not raise the same free speech concerns as government burdens on the communication of particular ideas.

Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.

• The Court affirms the judgment of the Court of Appeals regarding the CTEA's terms.
• The wisdom of legislative action falls outside the judicial province to second-guess.
• The challenged legislation remains within the constitutional domain assigned to Congress.
• The text transitions into Chapter IV covering formalities and duration.
• Justice Stevens provides a dissenting opinion.

The wisdom of Congress’ action, however, is not within our province to second-guess.

• Justice Breyer argues that the Sonny Bono Copyright Term Extension Act makes copyright terms virtually perpetual rather than limited.
• He asserts that the extension primarily benefits corporate successors and heirs rather than original authors, inhibiting the progress of knowledge.
• Breyer emphasizes that the Copyright Clause and the First Amendment share related objectives regarding the creation and dissemination of information.
• He contends that copyright statutes restricting speech should face closer judicial scrutiny than traditional economic regulations.
• A copyright statute lacks necessary rational support if it bestows private benefits, undermines expressive values, and lacks Clause-related objectives.

Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors.

• Copyright statutes impose costs on the public through potentially higher royalties and the mandatory requirement to obtain permission for reproduction.
• The current statute primarily benefits holders of existing copyrights, transferring billions of extra royalty dollars from consumers to creators of past works.
• Only a tiny fraction of older copyrights retain commercial value, yet they continue to generate hundreds of millions of dollars annually.
• The permissions requirement creates significant search and transaction costs, often inhibiting the use and dissemination of older or orphaned works.
• Extending copyright terms prevents older works from entering the public domain, dramatically increasing public costs while expected creation benefits diminish.

The extra royalty payments will not come from thin air.

• Fair use exceptions and copyright restrictions fail to protect access to missing historical materials in electronic databases.
• The traditional economic rationale of copyright fails to justify the 1998 Act's extension of copyright terms.
• Only a tiny fraction of copyrights retain commercial value after 75 years, rendering long-term extensions economically negligible for authors.
• Economists calculate that the present value of future earnings decades away amounts to mere cents today.
• No rational, monetarily motivated author would be inspired to create new works by such a minuscule prospective payout.
• Legislative history suggests the statute aimed to test constitutional limits, with proponents expressing a desire for perpetual copyright.

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

• The financial incentives of the copyright extension are too minimal to justify the serious harms to free expression.
• The statute fails to create any economic incentive for works that have already been created.
• Supporters argue the extension achieves international uniformity by matching the European standard of life plus 70 years.
• In reality, the statute does not create true uniformity for works made for hire, existing works prior to 1978, or anonymous works.
• The claim that the act encourages publishers to redistribute older works directly contradicts the fundamental purpose of the Copyright Clause.
• The Framers intended for the expiration of monopolies, rather than their perpetuation, to promote the widespread dissemination of existing works.

It assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence….

• Legislative history shows the statute aims to financially assist the entertainment industry by promoting exports.
• Enhancing monopoly power solely to increase foreign earnings is not a valid exercise of the Copyright Clause.
• The Copyright Clause fundamentally seeks public benefits rather than private corporate profits.
• Modern demographic, economic, and technological changes fail to provide legitimate justifications for term extension.
• Previous statutory terms already account for longer lifespans and changing generational timelines.
• The lack of serious copyright-related justifications undermines the validity of the statute.

The Clause seeks public, not private, benefits.

• The dissenting opinion rejects the idea that judicial review of copyright duration improperly usurps congressional authority.
• Judicial vigilance is necessary at the outer boundaries of the Copyright Clause to prevent monopolies that restrict expression.
• The challenged copyright extension statute causes serious expression-related harm while providing virtually nonexistent public benefit.
• The statute inhibits new forms of technology-based dissemination and threatens the preservation of historical and cultural heritage.
• The statute fails to advance any constitutionally legitimate interest and exceeds the legislative power granted to Congress.

This statute will cause serious expression-related harm.

• Legal scholars debate whether an indefinitely renewable copyright system would lead to perpetual protection or remain economically inefficient.
• Empirical studies on recorded music show that most works earn their lifetime revenue within five to ten years of release.
• Researchers argue that copyright duration rules should match the short commercial viability of average works rather than protecting outliers.
• The Berne Convention requires member states to provide reciprocal copyright protection lasting an author's lifetime plus fifty years.
• Historically, United States copyright law excluded foreign works and required strict adherence to registration and renewal formalities.
• When the United States joined the Berne Convention in 1989, it initially excluded works already in the public domain from retroactive protection.

most copyrighted music earns most of its lifetime revenue in the 5-10 years following initial release.

• The 1994 Uruguay round of trade negotiations established the WTO and TRIPS, giving enforcement teeth to international intellectual property agreements.
• Congress responded by passing Section 514 of the URAA, extending U.S. copyright protection to certain foreign works previously in the public domain.
• Restored works receive protection for the remainder of their original term, though they lack compensatory time for the period of prior exclusion.
• Congress included safeguards such as reliance party protections and grace periods to address potential Fifth Amendment Takings Clause concerns.
• In 2001, affected artists and publishers filed a lawsuit challenging Section 514 on Copyright Clause and First Amendment grounds.

The landscape changed in 1994.

• The Tenth Circuit considered whether Section 514 altered traditional copyright protections by removing works from the public domain.
• The District Court initially found the law failed First Amendment scrutiny because it lacked a narrowly tailored government interest.
• On further appeal, the Tenth Circuit reversed this decision, deferring to Congress on foreign affairs and protecting U.S. authors abroad.
• The Supreme Court granted certiorari to review the statute under both the Copyright Clause and the First Amendment.
• Petitioners argued that the Constitution's limited-times restriction forms an impenetrable barrier against reviving expired copyrights.
• The Supreme Court noted that its previous decision in Eldred largely disposed of the petitioners' limited-time arguments.

Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain.

• The Court rejected the argument that a copyright term once set must remain forever unalterable.
• Petitioners claimed a prior zero term for foreign works meant no limited time could follow.
• The Court dismissed fears of perpetual copyrights achieved through consecutive legislative installments.
• Petitioners argued that copyright laws are invalid unless they directly spur the creation of new works.
• The Court reaffirmed that the Copyright Clause does not require every discrete provision to induce new works.

In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works.

• Petitioners argue that Section 514 violates the First Amendment because it removes previously public domain works in which they held vested rights.
• The court notes this argument merely recycles the failed claim that the Constitution renders the public domain completely untouchable.
• Neither the Copyright Clause nor historical records establish that works entering the public domain can never be copyrighted again.
• Section 514 does not create a blanket prohibition on public access, but rather requires users to participate in the standard marketplace or rely on fair use.
• Congress enacted Section 514 to serve vital international copyright interests and treaty obligations, a judgment that remains constitutional.

However spun, these contentions depend on an argument we considered and rejected above, namely, that the Constitution renders the public domain largely untouchable by Congress.

• The Constitution grants Congress the power to secure exclusive rights for authors to promote the progress of science and learning.
• Copyright operates as a tax on readers that provides a bounty to writers, thereby encouraging the production of new material.
• The economic philosophy behind the Copyright Clause relies on personal gain to advance public welfare.
• The statute in question fails to encourage the production of a single new work because it only rewards owners of existing works.
• The law inhibits the dissemination of millions of foreign works that should otherwise be accessible to the public.
• New production has always been an essential precondition for American copyright protection under the Constitution.

In my view, the Copyright Clause does not authorize Congress to enact this statute.

• Copyright grants limited monopoly privileges to authors as private benefits intended to encourage the creation of new works.
• While monopolies incentivize production by preventing free-riding, they also restrict the dissemination of works through higher prices and administrative hurdles.
• The historical struggle against perpetual book trade monopolies in Britain shaped the foundational understanding of copyright.
• The Statute of Anne established a cultural quid pro quo, granting temporary printing rights to authors rather than publishers to encourage learning.
• Legal precedent affirms that copyright is designed with a necessary balance between incentivizing creation and serving the public interest.

Yet, as the Founders recognized, monopoly is a two-edged sword.

• Congress lacks the constitutional authority under the Copyright Clause to withdraw existing works from the public domain without generating new creative incentives.
• Removing materials previously accessible in the public domain directly abridges preexisting freedoms of speech.
• The presence of significant speech-related harms implicates First Amendment interests that courts must scrutinize.
• The Constitution should be interpreted as a unified document rather than setting the Copyright Clause and First Amendment at odds.
• Arguments claiming that mere market enrichment promotes dissemination fail because monopolies inherently restrict distribution compared to competitive markets.

By removing material from the public domain, the statute, in literal terms, “abridges” a preexisting freedom to speak.

• The argument for extending copyright terms primarily concerns private financial gain rather than promoting public creative processes.
• Although the Berne Convention aims to encourage new works, compliance with its retroactive provisions is largely a dilemma of the government's own making.
• The United States failed to negotiate protective exceptions during international trade agreements despite having the explicit authorization to do so.
• The Convention does not force Congress to inflict severe damage on public domain materials since other application conditions were available.
• Withdrawing material from the public domain inhibits the flow of information and violates constitutional limits.
• The dissenting opinion concludes that the challenged copyright statute exceeds the powers authorized by the Copyright Clause and the First Amendment.

Still, I cannot find this argument sufficient to save the statute.

• The 1976 Act eliminated copyright renewal for new works while retaining it for existing works under the 1909 Act.
• Congress extended renewal terms multiple times, making renewals relevant until 2072 for older works.
• The renewal structure was designed to give authors a second chance to benefit financially if their work became unexpectedly successful.
• Statutory rules under the 1976 Act determine a strict hierarchy of heirs and executors entitled to renewal rights if the author has passed away.
• The text questions whether copyright should be treated differently than other forms of property that lack a second bite at the apple.

It not infrequently happens that the author sells his copyright outright to a publisher for a comparatively small sum.

• An author can assign the rights to use a pre-existing work in a derivative work, raising questions about rights during renewal terms.
• Cornell Woolrich originally published the story 'It Had to Be Murder' in 1942 and later assigned its motion picture rights.
• The Copyright Act of 1909 provided an initial 28-year copyright term followed by a 28-year renewal term.
• Woolrich agreed to assign renewal term motion picture rights, but died before the renewal period began, leaving his property to a trust.
• The film adaptation 'Rear Window' was produced in 1954, and later the renewal rights were assigned to respondent Abend, who sued for copyright infringement after unauthorized broadcasts.

The author of a pre-existing work may assign to another the right to use it in a derivative work.

• The Second Circuit held in Rohauer v. Killiam Shows, Inc. that derivative work owners may continue using existing works even if the pre-existing work's grant lapses.
• Petitioners relied on this precedent to re-release the motion picture across various media formats.
• Respondent filed a copyright infringement suit, arguing that petitioners' right to use the underlying story lapsed when the original author died before renewal.
• The District Court initially granted summary judgment in favor of the petitioners based on the Rohauer precedent.
• The Court of Appeals subsequently reversed this decision, prompting a legal dispute over the exploitation of the motion picture during the renewal term.

The Court of Appeals reversed …. The issue before the court … was whether petitioners were entitled to distribute and exhibit the motion picture without respondent’s permission despite respondent’s valid copyright in the pre-existing story.

• Petitioners relied on the Rohauer decision to argue that derivative copyright owners retain the right to use underlying works despite copyright renewal.
• The Court of Appeals rejected this, following Miller Music Corp. to establish that pre-death assignments of renewal rights are merely contingent expectancies.
• When the original author dies before renewal, statutory successors acquire the full renewal rights, rendering prior assignments of derivative rights unenforceable.
• The appellate court found no support in the 1909 or 1976 Copyright Acts for limiting a renewal copyright owner's rights once a work is incorporated into a derivative project.
• The Supreme Court affirmed the judgment, upholding the statutory protection giving authors and their successors a second chance at remuneration through copyright renewal.

Until the time for registration of renewal rights arrives, assignees of renewal rights take the risk that the rights acquired may never vest in their assignors.

• Authors or their surviving family members are entitled to renew and extend copyright terms.
• If no direct family is alive, executors or next of kin may apply for the copyright extension.
• The renewal application must be registered within the final year of the original term.
• American copyright terms have historically been divided into an original term and a renewal term.
• Legislation in 1831 allowed authors to assign renewal interests without divesting rights from widows or children.

In 1831, Congress altered the provision so that the author could assign his contingent interest in the renewal term, but could not, through his assignment, divest the rights of his widow or children in the renewal term.

• Congress established a two-term copyright system to give authors a second chance to renegotiate the value of their work after its initial success is known.
• Copyrights are uniquely difficult to evaluate financially before they are actually exploited by the public.
• If an author dies before the renewal period begins, their prior assignment of renewal rights becomes void and vests in their family or executor.
• Assignees of renewal rights hold only an expectancy and take the risk that the author might not survive to the renewal term.
• Assignees holding partial rights, such as the right to produce derivative works, similarly lose those rights if the author dies prematurely.

[U]nlike real property and other forms of personal property, [a copyright] is by its very nature incapable of accurate monetary evaluation prior to its exploitation.

• Petitioners rely on the Rohauer decision to support their legal theory.
• The Rohauer court sought to balance rights between pre-existing and derivative work owners.
• The case addressed scenarios where author death causes renewal rights to revert.
• The court concluded derivative work owners could continue exploitation despite reversion.
• This outcome was justified by statutory interpretation and a balancing of equities.

Addressing a case factually similar to this case, the court concluded that even if the death of the author caused the renewal rights in the pre-existing work to revert to the statutory successor, the owner of the derivative work could continue to exploit that work.

• Creators of derivative works like operas or films often make contributions as substantial as the original author's.
• Purchasers of derivative rights face significant uncertainty because they cannot predict who will survive to claim renewal rights.
• Petitioners argued that creating a new derivative work extinguishes infringement claims during the renewal term for the pre-existing work.
• The Court rejected this theory, emphasizing that using elements from a pre-existing work without a valid license remains infringing.
• While the 1976 Act allows authors to terminate certain grants of rights, it includes a specific exception protecting existing derivative works.

It is moreover contrary to the axiomatic copyright principle that a person may exploit only such copyrighted literary material as he either owns or is licensed to use.

• Petitioners argued that the ability to continue utilizing existing derivative works implies a policy against authors blocking them.
• The Court disagreed, noting that the termination provisions actually assume original copyright owners retain infringement rights.
• Statutory language indicates Congress specifically understood that pre-existing work owners hold ongoing rights after incorporation.
• Neither the 1909 nor the 1976 Copyright Act supports the petitioners' interpretation regarding termination exceptions.
• Policy arguments concerning the potential suppression or exorbitant pricing of creative works are deemed matters for Congress rather than the courts.
• High initial demands in negotiations do not inherently preclude economic accommodation or profit-driven bargaining.

These arguments are better addressed by Congress than the courts.

• The Copyright Renewal Act of 1992 eliminated mandatory renewal registration for works published between 1964 and 1977.
• The new law established incentives for early registration, tying them to the legal rule articulated in Abend.
• The 1909 and 1976 Copyright Acts were both motivated by the goal of protecting authors who possess weaker bargaining power than distributors.
• Because the 1976 Act lacks a traditional renewal period, it introduces specific provisions allowing authors to terminate transfers and licenses.
• Section 203 outlines the exact conditions and joint-author majorities required to execute a copyright transfer termination.
• Certain exceptions apply, explicitly barring works made for hire, transfers made by will, and subsequent transferors from exercising termination rights.

The 1909 Act made the renewal term revert back to the original author to give him or her a second chance to recapture the copyright and reprice it.

• Grants of rights can be terminated during a specific five-year window starting after thirty-five years.
• Terminating a transfer requires serving a formal advance notice in writing to the grantee.
• Advance notices must state the effective date and be recorded in the Copyright Office.
• The 1976 Act also provides limited termination rights for transfers made under the 1909 Act.
• Congress intended the extended copyright term to benefit authors and their heirs as a new property right.
• The law forbids advance agreements that attempt to waive an author's termination rights.

Congress was convinced that the extended term represents a completely new property right, and there are strong reasons for giving the author, who is the fundamental beneficiary of copyright under the Constitution, an opportunity to share in it.

• Copyright law allows the termination of grants despite contrary agreements to protect authors from signing away renewal rights.
• Section 304(d) provided termination rights for the 1998 copyright term extension, though these are no longer possible.
• Some courts permit termination to be bypassed when authors or heirs renegotiate agreements in advance.
• Courts argue that renegotiated agreements use the threat of termination to secure better deals for authors.
• Critics contend that these pre-termination renegotiations violate the statutory ban on agreements to the contrary.

Congress sought to foster this purpose by permitting an author’s heirs to use the increased bargaining power conferred by the imminent threat of statutory termination to enter into new, more advantageous grants.

• Copyright termination rights are designed to let authors recapture rights to successful works they initially signed away.
• These termination rights can act as a regressive tax, causing publishers to pay all authors less upfront because future rights are uncertain.
• Legal analysis suggests that only authors of successful works ultimately benefit from exercising termination rights.
• The Fifth Circuit ruled that terminating a U.S. copyright transfer can also recapture international rights under specific statutory interpretations.
• Artist resale royalty rights offer an alternative model, granting creators a percentage of appreciated value upon the resale of their work without requiring renegotiation.

Because publishers know authors can terminate transfers down the road, they are willing to pay all authors less for initial rights because the right is not as valuable.

• Federal courts have held that California's artist resale royalty law is largely preempted by the 1976 Copyright Act.
• The sound recording industry has tried to prevent musicians from exercising termination rights by labeling recordings as works made for hire.
• Sound recordings generally do not qualify as works made for hire unless the artists were formal employees of the record labels.
• Legal scholars widely agree that it is difficult for record labels to successfully block artist termination rights using the work-for-hire loophole.
• A successful copyright infringement claim requires proving both ownership of a valid copyright and unauthorized copying of protected expression.

The sound recording industry has feared successful musicians exercising their termination rights, particularly starting in 2013 (35 years after the 1976 Act went into effect).

• Direct infringement requires establishing both copying in fact and improper appropriation, which the text calls copying in law.
• Proving direct infringement also requires showing that the defendant's conduct actually caused the infringement.
• Defendants can still face secondary liability for infringement caused by someone else's conduct even if they did not directly cause it.
• Copyright holders hold exclusive rights under 17 U.S.C. § 106 to reproduce, prepare derivative works, distribute, perform, and display.
• Infringement occurs when a defendant violates any exclusive rights without a valid defense such as fair use or statutory limitations.

In this chapter, we will examine both “copying in fact” and “improper appropriation,” which we refer to in this book as “copying in law.”

• Copyright infringement analysis requires establishing two distinct elements: copying in fact and copying in law.
• Copying in fact means the defendant actually used elements of the plaintiff's work, including potentially unprotected ideas.
• Copying in law requires that the copying is quantitatively and qualitatively sufficient to trigger legal liability, often called substantial similarity.
• Courts frequently use inconsistent terminology for these elements, requiring careful attention to context during legal analysis.
• The reproduction right is the most commonly asserted exclusive right and can be violated even if a copy is hidden away and never distributed.

If you make a copy of someone’s copyrighted work and lock it up in a desk drawer to gather dust, you will be infringing that person’s right of reproduction (absent a valid defense).

• A 1994 jury found Michael Bolton guilty of copyright infringement for his 1991 song 'Love Is a Wonderful Thing.'
• The court ordered Bolton to pay a massive award of $5.4 million to the Isley Brothers.
• The Isley Brothers originally wrote and copyrighted their version of the song in 1964.
• Despite limited commercial success on the charts in the 1960s, the Isley Brothers' track remained protected.
• Copyright plaintiffs must prove ownership and infringement by demonstrating access and substantial similarity.

The district court denied Bolton’s motion for a new trial and affirmed the jury’s award of $5.4 million….

• Proof of access in copyright infringement cases requires establishing a reasonable opportunity or possibility to view or copy the plaintiff's work.
• Reasonable access can be proven circumstantially through a specific chain of events or by demonstrating widespread dissemination of the original work.
• Widespread dissemination often supports the legal theory of subconscious copying, which has been recognized in jurisprudence since 1924.
• Courts have held that even a significant lapse of time between exposure to a work and creation of a new one does not preclude a finding of copying.
• Famous cases, such as George Harrison's subconscious copying of 'He's So Fine,' illustrate how striking similarity combined with remote access establishes infringement.

Everything registers somewhere in our memories, and no one can tell what may evoke it.... It is no excuse that in so doing his memory has played him a trick.

• Radio DJs testified about widespread airplay of the Isley Brothers' song across multiple cities.
• Michael Bolton expressed deep fandom and familiarity with the Isley Brothers' catalog during a 1988 encounter.
• During a recording session, Bolton questioned if the track they were writing was actually by Marvin Gaye.
• The defense argued that the song never charted and that subconscious copying twenty-five years later was highly attenuated.
• Experts and TV guides were presented by the defense to challenge the plausibility of access, noting numerous similarly titled songs.

This statement suggests that Bolton was contemplating the possibility that the work he and Goldmark were creating, or at least a portion of it, belonged to someone else, but that Bolton wasn’t sure who it belonged to.

• The court found that the jury's conclusion regarding access and copying was supported by substantial evidence.
• Bolton and Goldmark attempted to rebut the presumption of copying by presenting evidence of independent creation.
• The work tape revealed that Bolton may have subconsciously copied a song he believed was written by Marvin Gaye.
• Appellate courts generally refuse to disturb a jury's determination on independent creation when substantial evidence of copying exists.
• Legal commentary and recent rulings reject the inverse ratio rule, which improperly lowers similarity standards for highly accessible works.

The work tape revealed evidence that Bolton may have subconsciously copied a song that he believed to be written by Marvin Gaye.

• Legal scholarship debates the complexities of subconscious copying, awareness of prior works, and the challenges of independent creation in the internet age.
• Ronald H. Selle sued the Bee Gees, alleging their hit song 'How Deep Is Your Love' infringed the copyright of his lesser-known composition 'Let It End.'
• Selle had composed his song in 1975, performed it locally, and sent demo tapes to several recording companies, achieving very limited public dissemination.
• Upon hearing the Bee Gees' song in 1978, Selle immediately recognized the music as his own despite the lyrics being different.
• Although a jury initially found in favor of the plaintiff on liability, the district court granted the defendants' motion for judgment notwithstanding the verdict, which the appellate court affirmed.

If this argument is correct, what are the implications for infringement doctrine?

• The Bee Gees composed music by recording work tapes rather than reading or writing musical notation.
• During a 1977 studio session in France, the group recorded the creation process of the accused song.
• An expert music professor testified that the two songs shared striking similarities in pitch and rhythm.
• Despite the musical similarities, the expert declined to definitively state the similarities resulted from copying.
• The district court overturned the jury verdict because the plaintiff failed to prove access or refute independent creation.

This tape preserves the actual process of creation during which the brothers, and particularly Barry, created the tune of the accused song while Weaver, a keyboard player, played the tune which was hummed or sung by the brothers.

• Selle appeals the district court's understanding of his copyright infringement theory of proof.
• The legal case centers on how the specific theory of proof is applied to the infringement claim.
• Chapter V of the text specifically focuses on exclusive rights related to the dispute.
• The court's interpretation of Selle's legal framework remains central to the appellate arguments.

Selle’s primary contention on this appeal is that the district court misunderstood the theory of proof of copyright infringement on which he based his claim.

• Proof of copying is legally required for any copyright infringement claim, regardless of how identical two works appear.
• Because direct proof is rare, plaintiffs often rely on circumstantial evidence, primarily focusing on proving the defendant's access to the original work.
• When direct evidence of access is absent, plaintiffs may argue that the works share a striking similarity so intense it precludes independent creation.
• Striking similarity cannot be viewed in isolation and must be evaluated alongside other circumstantial evidence regarding the nature of the genre and the works.
• Even with extreme similarity, plaintiffs must still establish a reasonable possibility of access rather than relying purely on speculation and conjecture.

If the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity.

• Ty, Inc. secured a preliminary injunction against GMA Accessories for selling bean-bag animals allegedly copied from the Beanie Babies line.
• The Copyright Act prohibits only copying, meaning that an identical work created independently does not constitute infringement.
• Creators of expressive works cannot realistically canvass the entire universe of copyrighted works to check for prior existence.
• Identity serves as powerful circumstantial evidence of copying, especially when the work differs significantly from the public domain.
• Establishing copyright infringement requires proving both that the alleged copier had access to the original work and that they actually used that access.

Identity is not infringement.

• Access does not automatically mean copying, but copying inherently requires prior access to the original work.
• Striking similarity between two works can serve as sufficient evidence that the creator had access to the original.
• Similarities between works do not imply copying if both creators independently copied from the same public domain source.
• GMA's stuffed pig closely resembled Ty's Squealer rather than any real pig or public domain alternative, supporting the inference of copying.
• The designer's sworn affidavit denying she looked at Squealer failed to rebut the infringement claim because the final manufactured product closely mirrored Squealer.

A similarity may be striking without being suspicious.

• Copyright law evaluates whether internet availability and genre-specific traits create false appearances of actual copying.
• Patent law fundamentally differs from copyright by rejecting independent creation as a defense against infringement.
• Scholars actively debate whether patent law should adopt a requirement to prove copying in fact.
• Businesses implement specific policies and documentation practices to effectively prove independent creation.
• The doctrine of striking similarity permits an inference of copying without direct proof, originating from Arnstein v. Porter.
• Courts often apply strict standards, sometimes rejecting striking similarity as a matter of law despite thematic overlaps.

Patent law takes a different approach than copyright law in not requiring any copying in fact to establish patent infringement.

• Dodgeball is portrayed differently as a lifelong local rivalry in the screenplay versus an accidental discovery in the finished film.
• The protagonist's romantic interests and underlying motivations shift significantly between the two script versions.
• Legal standards for copyright infringement require proving that material was actually copied from a protected work.
• Copying in fact can be demonstrated directly or through circumstantial evidence such as access and probative similarity.
• Striking similarity can also serve as circumstantial evidence when no reasonable explanation other than copying exists.
• Independent creation serves as a valid defense that completely eliminates liability for copyright infringement.

If the defendant proves that the allegedly infringing material was independently created rather than copied, directly or indirectly, from the plaintiff’s copyrighted work, there was no copying in fact from the plaintiff’s work and therefore no liability for copyright infringement.

• Copying in law requires sufficient quantitative and qualitative appropriation to trigger legal liability.
• Plaintiffs must prove that enough protected expression was copied to establish substantial similarity.
• This section examines copying across three distinct contexts: de minimis, substantially similar, and exact copies.
• De minimis copying occurs when the borrowed material is minimal in a legally salient way.
• In Gayle v. HBO, a copyright infringement claim arose from the brief background depiction of graffiti on a dumpster.

In the copyright arena, de minimis can mean what it means in most legal contexts: a technical violation of a right so trivial that the law will not impose legal consequences...

• Courts evaluate actionable copying by analyzing the similarity and observability of a copyrighted work within an allegedly infringing material.
• Observability is judged from the perspective of an average lay observer, considering duration, focus, lighting, camera angles, and prominence.
• In Gottlieb v. Paramount Pictures Corp., a pinball machine featured briefly and indistinctly in a movie background was deemed a de minimis use.
• Gayle's copyright claims regarding a fleeting, barely visible graffiti shot in a television scene were dismissed as legally frivolous.
• An anonymous social media message and the deliberate artistic intent of the production team do not alter the objective de minimis standard.
• Because the graffiti was obscure, low-lit, and virtually impossible to notice in real time, the copyright infringement claim failed.

It is next to impossible to notice when viewing the episode in real time.

• The text explores the legal boundary between de minimis copying and substantial copyright infringement.
• In Ringgold v. Black Entertainment Television, the Second Circuit evaluated the brief background appearance of an artist's quilt poster in a television episode.
• The court rejected the defense that the artwork was too blurry or brief to be actionable, comparing it to seeing only a generic woman with a wry smile in a video of the Mona Lisa.
• Total cumulative visibility of nearly twenty-seven seconds across multiple segments crossed the threshold for quantitative and qualitative sufficiency.
• Alternative legal remedies, such as awarding trivial damages instead of exempting minor copying, are considered as potential approaches.
• The Ninth Circuit applies the de minimis principle to determine if a work is a recognizable copy, leading to potential differences in judicial interpretation.

That is about like saying that a videotape of the Mona Lisa shows only a painting of a woman with a wry smile.

• Researchers Jessica Silbey and Samantha Zyontz empirically studied the historical evolution of the de minimis defense in copyright cases since the mid-nineteenth century.
• The defense has shifted from addressing fragmentary copying between competitors to wholesale trivial copying and, recently, potential licensee disputes in the digital age.
• Despite the surge in trivial digital copying, the defense's overall success rate has remained consistent over time.
• Scholars propose that the defense should protect quantitatively small yet qualitatively insignificant copying to facilitate modern digital communication like memes and emojis.
• Substantial similarity serves as the legal flip side to de minimis copying, representing unauthorized appropriation sufficient to establish liability.

Though the earliest invocation of the doctrine occurs in the context of a fair use decision, this doctrine takes on a life of its own and evolves.

• The plaintiff claims the defendant's motion picture infringed upon the copyright of the play 'Abie’s Irish Rose.'
• The court assumes for the sake of argument that the defendant used some details from the plaintiff's play.
• Both works revolve around a secret interfaith marriage between Jewish and Irish Catholic youths that outrages their respective fathers.
• The plot features comedic elements, including deceptive introductions, clashing parental prejudices, and eventual reconciliation through grandchildren.
• The legal discussion raises questions about why copyright infringement applies to more than just exact copying.
• Readers are prompted to evaluate which specific similarities contribute to a conclusion of substantial similarity.

The priest and the rabbi become friendly, exchange trite sentiments about religion, and agree that the match is good.

• Two feuding Jewish and Irish families live side by side in poor New York quarters with mutual animosity.
• The secret marriage of the Jewish daughter and the Irish son defies the deep-seated hatred between their parents.
• A sudden inheritance lifts the Jewish family into wealthy ostentation, intensifying the class and cultural conflict.
• After discovering the marriage and the birth of a grandchild, the enraged Jewish father initially rejects his daughter.
• A scheming lawyer attempts to blackmail the Jewish father regarding the true rightful heir to the fortune.
• Overcoming his anger, the Jewish father ultimately walks through the rain to surrender the property to his enemy.

This the Jew repudiates, and, leaving the astonished lawyer, walks through the rain to his enemy’s house to surrender the property.

• Copyright protection cannot be limited literally to the text, otherwise plagiarists would escape by making immaterial variations.
• When evaluating plays, determining whether a substantial part has been taken becomes difficult when the plagiarist appropriates an abstract of the whole rather than a single block.
• As works are abstracted into general patterns, a boundary is reached where ideas are no longer protected, since property rights never extend to ideas apart from their expression.
• The less developed characters are, the less they can be copyrighted, which is the penalty an author bears for creating indistinct characters.
• In the comparative analysis of the two plays at hand, the court found that the defendant took no more than the law allowed because the stories and themes were fundamentally different.

It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.

• The plaintiff's play is assumed to be wholly original for the sake of argument.
• Novelty is not strictly deemed essential to copyright protection in this context.
• General backgrounds and broad themes cannot be monopolized by a single author.
• The characters in question are recognized as stock figures, such as the low comedy Jew and Irishman.
• Extending copyright to these generalized prototypes would improperly cover unoriginal elements.

Though the plaintiff discovered the vein, she could not keep it to herself; so defined, the theme was too generalized an abstraction from what she wrote.

• The legal comparison between the two plays reveals significant differences in character traits, motivations, and overall depiction.
• Generic character archetypes like lovers and fathers belong to the public domain and cannot be exclusively copyrighted.
• Generalized emotional parallels presented by the plaintiff fail to prove copyright infringement because they lack specific contextual causes.
• Courts must determine the arbitrary line where copyrighted material ends and public domain begins based on overall spectator impressions.
• The use of expert testimony in dramatic craftsmanship is discouraged as it tends to confuse the court rather than clarify the core issues.

A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.

• Plaintiff Ira Arnstein sued composer Cole Porter for copyright infringement across multiple musical compositions under wild and dramatic allegations.
• Arnstein claimed Porter used stooges to follow him, burglarized his apartment, and stole unpublished songs.
• The court outlines two distinct elements in a copyright infringement suit: proving copying and proving improper appropriation.
• Expert testimony and analytical dissection are permissible to prove the first element of copying.
• Conversely, expert testimony is irrelevant for the second element of unlawful appropriation, which relies instead on the reaction of the ordinary lay hearer.

He also alleged that Porter “had stooges right along to follow me, watch me, and live in the same apartment with me,” and that his apartment had been burglarized multiple times.

• The central question in music copyright cases is whether a defendant has wrongfully appropriated elements pleasing to lay listeners.
• This determination of fact is uniquely suited for a jury or an advisory jury rather than a summary judgment.
• Expert musical testimony is secondary and only useful to gauge the reactions of ordinary audiences, not technical excellence.
• The dissenting judge warns that relying heavily on recorded sound in court can be misleading and obscure the real issues.
• Simple compositional devices, such as the repeated use of a single note, are too ordinary to constitute significant infringement.

Though he himself did not stress these records and properly met plaintiff’s claims as to the written music with his own analysis, yet the tinny tintinnabulations of the music thus canned resounded through the United States Courthouse to the exclusion of all else, including the real issues in the case.

• Tone-deaf individuals should theoretically be excluded from juries handling music infringement cases.
• Courts generally rely on overall sound impression rather than minute technical dissection to evaluate copying.
• Music involves intellect as well as emotion, requiring analytical faculties for proper appreciation.
• Relying solely on small, trite repetitive sequences is akin to accusing Shakespeare of infringement based on common grammar.
• Allowing claims based on slight musical analogies invites clever exploitation and strike suits.
• Abandoning intellectual analysis in favor of purely naive listening risks judicial and musical chaos.

It is as though we found Shakespeare a[n infringer] on the basis of his use of articles, pronouns, prepositions, and adjectives also used by others.

• The Second Circuit derived its abstraction-filtration-comparison test from Judge Hand's analysis in Nichols.
• After applying this test to Computer Associates' ADAPTER software, the court found no copyright infringement due to lack of substantial similarity.
• Legal scholars debate whether Judge Frank's approach in Arnstein regarding dissection, expert testimony, and copying in law aligns with copyright goals.
• While Arnstein generally excludes expert views on substantial similarity, courts occasionally permit expert testimony for complex art forms not easily understood by laypersons.
• Cases like Dawson v. Hinshaw Music adjust the substantial similarity inquiry depending on whether the intended audience possesses specialized expertise.

expert testimony might be relevant when dealing with 'art forms [that are not] readily comprehensible and generally familiar to the average layperson.'

• Copyright infringement should require both technical similarity and market substitution under a utilitarian IP regime.
• Market substitution is crucial because harmless interference with a market does not justify legal prohibition.
• Technical similarity ensures that legitimate competition from better products is not wrongfully suppressed by the law.
• An expert audience evaluates technical similarity by accounting for genre constraints and protectable elements.
• Consumers provide a necessary vantage point to determine if two works act as true market substitutes.
• Using sound recordings instead of sheet music in copyright cases can mislead jurors into comparing the wrong elements.

Playing the sound recording in a [musical c]omposition [c]opyright case invites the jurors to make the wrong comparison, comparing the sound recordings, rather than the compositional elements underlying each recording.

• The New Yorker published Saul Steinberg's iconic cover illustration in March 1976 and later assigned the copyright to him.
• The plaintiff and the magazine previously entered an agreement to produce and sell a limited number of posters based on the illustration.
• Although similar posters depicting other cities exist, the court noted those facts are irrelevant to the specific merits of this copyright case.
• Defendants created an advertisement for the film Moscow on the Hudson that drew direct inspiration from Steinberg's work.
• The film's art director admitted to purchasing Steinberg's poster and explicitly instructed the illustrator to use it for reference to achieve a authentic New York aesthetic.

In designing this illustration, Columbia’s executive art director, Kevin Nolan, has admitted that he specifically referred to Steinberg’s poster, and indeed, that he purchased it and hung it, among others, in his office.

• Steinberg's illustration offers a bird's eye view of Manhattan and a compressed view of the rest of the world.
• The poster emphasizes Manhattan's detailed blocks while minimizing the rest of the United States to symbolize a myopic New Yorker perspective.
• The 'Moscow' poster superimposes movie characters over a similar bird's eye view of New York City extending eastward to Russia.
• Columbia's poster incorporates stylistic elements from Steinberg's work, including spiky lettering and a similar sky and horizon design.
• The visual and textual similarities between the two illustrations form the basis for analyzing copyright infringement.

The entire United States west of the Hudson River, for example, is reduced to a brown strip labeled 'Jersey,' together with a light green trapezoid with a few rudimentary rock outcroppings and the names of only seven cities and two states scattered across it.

• Defendants' access to the plaintiff's original illustration is undisputed, leaving the central liability issue as establishing substantial similarity.
• Substantial similarity is determined by whether an average lay observer would recognize the work as appropriated, moving away from Judge Learned Hand's harsher standard.
• While the underlying idea of an egocentric world map cannot be monopolized, the line between unprotected ideas and protected expression must be decided on a case-by-case basis.
• The striking stylistic relationship between the posters is legally significant because artistic style constitutes an important ingredient of expression.
• Both illustrations share distinct compositional techniques, including a bird's-eye perspective of Manhattan, receding detail, and identical bands of blue and red representing the sky and horizon.

Defendants’ illustration was executed in the sketchy, whimsical style that has become one of Steinberg’s hallmarks.

• Both artists rendered New York City blocks from a specific vantage point looking down a two-way cross street.
• The choice of perspective and layout is protected expression rather than an inevitable depiction.
• Defendants changed street names while keeping graphic depictions, weakening their defense.
• Defendants' buildings closely resemble plaintiff's fictionalized structures rather than actual New York architecture.
• The replication of shadows, streetlights, and distinctive childlike block lettering strongly indicates copying.

Thus, the similarity between the buildings depicted in the “Moscow” and Steinberg posters cannot be explained by an assertion that the artists happened to choose the same buildings to draw.

• Substantial similarity does not require total identity or duplication to establish copyright infringement.
• Adding background details like Moscow or landmarks does not eliminate the core similarity between the illustrated works.
• The creation process of the defendants' poster, where the map was designed separately, undermines their defense.
• Standard elements like buildings and lampposts are protected when looking at the specific expression rather than the mere presence of the elements.
• Copyright law discussions extend to whether protecting artistic styles aligns with the law's broader aims, as seen in subsequent quilt design cases.

No plagiarist can excuse the wrong by showing how much of his work he did not pirate.

• Defendant Banian, Ltd. imported three alphabet quilts from India, leading to a copyright infringement lawsuit filed by the plaintiffs in March 1997.
• Actual copying was established and undisputed, requiring plaintiffs to further demonstrate substantial similarity between the competing quilts.
• The appellate court reviews the district court's determination of substantial similarity de novo through a direct visual comparison.
• Because the alphabet is sourced from the public domain, courts must apply a more discerning ordinary observer test focused on protectible compilation elements.
• Courts must avoid excessively dissecting works into isolated components, instead evaluating the total concept and feel of the contested items using common sense.

To do so would be to take the “more discerning” test to an extreme, which would result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectible elements like letters, colors and symbols.

• The text analyzes and compares the design elements, icons, and layout of competing alphabet quilts.
• Detailed color combinations and fabric choices for specific letters reveal striking similarities between the competing designs.
• Both sets of quilts share identical unique letter shapes and matching quilting patterns, such as diamond-shaped quilting and wavy borders.
• The court found that the overwhelming similarities in color choices and letter styling demonstrate illegal copying and copyright infringement for the 'ABC Green' versions.
• Minor differences, such as varied icons or added green borders, are insufficient to prevent the quilts from appearing substantially similar.
• In contrast, the 'ABC Navy' quilt does not infringe on the copyright because its layout and color choices differ significantly.

From this enormous amount of sameness, we think defendants’ quilts sufficiently similar to plaintiffs’ design as to demonstrate illegal copying.

• Defendants made multiple notable design changes in ABC Navy compared to prior versions, including altering fabric patterns, quilting designs, and edge binding colors.
• The court concluded that when viewed side-by-side, the quilts are not substantially similar to one another.
• Plaintiffs' focus on stylistic similarities in certain letters was deemed insufficient to support a finding of copyright infringement.
• The court determined that no ordinary or discerning observer would likely find the two works to be substantially similar.
• Legal commentary notes express concern that the total concept and feel standard can seem overly amorphous and invite an abdication of analysis.
• Courts clarify that the total concept and feel test serves as a reminder to look at aggregate aesthetic decisions rather than just isolated components.

Some commentators have worried that the “total concept and feel” standard may “invite[] an abdication of analysis,” because “feel” can seem a “wholly amorphous referent.”

• Courts must analyze works closely to determine if similarities stem from protected original expression or unprotected public domain elements.
• The Second Circuit's 'total concept and feel' test raises questions about whether juries can properly administer it without confusing protected expression with unprotected ideas.
• Sid and Marty Krofft created the popular children's television program H.R. Pufnstuf featuring fanciful characters and a fantasy setting.
• An advertising agency contacted the Kroffts about using their H.R. Pufnstuf characters for a proposed McDonald's campaign.
• The advertising agency ultimately went forward with the McDonaldland campaign concept while acknowledging the need to pay a fee for designs.

Is the 'total concept and feel' test, as the Second Circuit describes it, administrable by a jury?

• Needham cancelled talks with the Kroffts and instead launched the strikingly similar McDonaldland campaign using former employees and voice experts.
• The Krofft plaintiffs successfully sued Needham for copyright infringement regarding their Pufnstuf television episodes and merchandise.
• Copyright infringement analysis requires determining whether there has been unlawful copying of the specific expression of an idea rather than just the underlying idea itself.
• The legal test for infringement involves two steps, starting with an extrinsic test to measure the similarity of general ideas using objective criteria.
• Evaluating the similarity of expression is far more subtle and complex, requiring ad hoc decisions rather than rigid guiding principles.

Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’

• Infringement analysis requires determining substantial similarity in both ideas and expressions.
• The intrinsic test relies on the response of an ordinary reasonable person rather than expert testimony.
• Defendants improperly used analytic dissection to highlight dissimilarities between constituent parts.
• McDonald's intentionally replicated the successful format and appeal of the Pufnstuf television series.
• The court concluded that the works share a substantially similar total concept and feel.

It was in recognition of the subjective and unpredictable nature of children’s responses that defendants opted to recreate the H. R. Pufnstuf format rather than use an original and unproven approach.

• Wanda and Christopher Cavalier created copyrighted children's stories featuring Nicky Moonbeam, an anthropomorphic moon designed to help kids overcome fears.
• Between 1995 and 1998, the Cavaliers submitted over 280 pages of materials and product concepts, including a unique board book night light design, to Random House and Children's Television Workshop.
• After meeting with the creators, Random House and CTW rejected the submissions but subsequently published similar bedtime books like Good Night, Ernie and Good Night, Elmo.
• The Nicky Moonbeam story involves an anthropomorphic moon who sails a dream boat to Earth, befriends a child named Daisy, and explores magical night skies.
• The Cavaliers proposed an innovative board book design featuring an extended back cover that housed an interactive, built-in pearly white moon night light.

From 1995 through 1998, the Cavaliers submitted more than 280 pages of material, including their copyrighted works, to Random House and Children's Television Workshop.

• The Cavaliers proposed artwork features whimsical nighttime illustrations including stars wearing top hats and a smiling moon sending down moonbeams.
• Good Night, Ernie is a short board book where Ernie takes an imaginary night sky journey and counts stars before returning to his floating bed.
• Good Night, Elmo features Elmo riding a moonbeam, racing a shooting star, and seeing the cow jump over the moon.
• Both Sesame Street books incorporate distinctive visual elements like ping-pong ball-shaped eyes and round bulbous noses on celestial characters.
• Each book includes an interactive built-in night light on the extended inside back cover controlled by a simple button.

He wonders how many stars there are, and counts them as he sits on a crescent moon.

• The Cavaliers filed a copyright infringement lawsuit against Random House and CTW regarding their Nicky Moonbeam characters and materials.
• The trial court granted summary judgment for the defendants, ruling that general story lines and stock characters are not protectible and the works were not substantially similar.
• To prove infringement, plaintiffs must demonstrate ownership and that the defendant copied protected elements through substantial similarity.
• The court applies a two-part analysis consisting of an objective extrinsic test and a subjective intrinsic test to determine substantial similarity.
• When applying the extrinsic test, courts must filter out and disregard any non-protectible elements before making a determination.

The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.

• The legal analysis compares the Good Night books to the Nicky Moonbeam stories as literary works.
• On summary judgment, only the extrinsic test matters for comparison, requiring objective factors.
• Basic plot ideas like a child's journey through the night sky are not protected by copyright law.
• The actual narratives and word counts differ significantly between the elaborate stories and simple books.
• Common elements such as the night sky setting constitute scenes-a-faire and cannot support substantial similarity.

The Cavaliers’ Nicky Moonbeam stories and Good Night, Elmo share the general premise of a child, invited by a moon-type character, who takes a journey through the night sky and returns safely to bed to fall asleep.

• The Nicky Moonbeam stories feature serious, instructional themes and dialogue, contrasting with the lighthearted, message-free mood of the Good Night books.
• Good Night books utilize Sesame Street characters and stock moon elements, distinguishing them from the unique character roster of Nicky Moonbeam.
• Random House and CTW successfully argued that a compilation of random similarities across 280 pages does not establish substantial literary similarity.
• Courts evaluate the total concept and feel of children's works, finding that the instructional tone of the Cavaliers' stories precludes copyright infringement.
• Despite no overall literary infringement, the court identified three specific pieces of artwork that present a close question regarding substantial similarity.

Three of the art works present a close question of substantial similarity for summary judgment purposes: (1) the moon night light design on the extended inside back cover; (2) the illustration of stars relaxing on clouds; and (3) the illustration of stars being polished.

• Objective similarity in appearance is determined by evaluating subject matter, shapes, colors, materials, and arrangement.
• It remains unclear whether the rule preventing summary judgment when a triable issue of fact exists applies directly to artwork.
• The underlying rationale favoring subjective assessment by a jury supports applying the standard to artistic works.
• A direct comparison of the night light designs reveals striking similarities in their basic concept and arrangement.
• While the general idea of a built-in night light is unprotected, the specific facial configuration and button placement constitute protectible expression.
• Minor differences in facial features are insufficient to grant summary judgment for the defendant regarding substantial similarity.

Although the concept of a built-in night light is not protectible under copyright law, the choice of a smiling moon or star face with pinkish cheeks surrounded by stars in a specific configuration, and situated above an encircled star “on” button, constitutes protectible expression.

• Two artistic depictions of stars resting on clouds share striking conceptual and visual similarities, such as the core theme of daytime star activities.
• Both illustrations feature stars wearing distinctive red and green woolen winter or sleeping caps while appearing ready to fall asleep.
• Despite differing character designs and specific activities, the striking similarities in subject matter and arrangement are enough to survive summary judgment.
• A separate comparison of stars being polished reveals key differences in protectible details, leading the court to find no triable issue of substantial similarity.
• The court ultimately affirms the district court's grant of summary judgment on the literary works as a whole while reversing it for specific illustrations.

Most strikingly, several of the stars in both illustrations are wearing red and green woolen (striped and solid) winter or sleeping caps.

• Rentmeester captured a highly original, carefully staged photograph of Michael Jordan leaping with a basketball.
• The photographer drew inspiration from ballet to create an unnatural, soaring pose against a cloudless sky.
• Nike initially paid a nominal fee to borrow Rentmeester's transparencies for a limited slide presentation.
• Nike subsequently hired its own photographer to replicate the iconic composition for the new Air Jordan campaign.
• The resulting Nike photo featured the Chicago skyline and promoted the brand's legendary athletic shoes.

It was an unusual pose for a basketball player to adopt, one inspired by ballet’s grand jeté, in which a dancer leaps with legs extended, one foot forward and the other back.

• Rentmeester initially threatened to sue Nike over the use of his photograph, leading to a limited licensing agreement in March 1985.
• Nike later created its iconic Jumpman logo in 1987 based on the outline of Michael Jordan from the disputed photo.
• Rentmeester filed a copyright infringement lawsuit against Nike in January 2015 regarding both their promotional photo and the Jumpman logo.
• The district court dismissed Rentmeester's claims with prejudice, concluding no copyright infringement occurred as a matter of law.
• A valid copyright infringement claim requires proving both valid copyright ownership and the unlawful appropriation of protected expression.
• Copyright law distinguishes between unprotected ideas and protected expression, requiring substantial similarity of the actual expression to find liability.

In 1987, Nike created its iconic “Jumpman” logo, a solid black silhouette that tracks the outline of Jordan’s figure as it appears in the Nike photo.

• Proving copyright infringement requires establishing both copying and unlawful appropriation.
• Proving copying simply requires showing similarities that could not arise through independent creation.
• Proving unlawful appropriation requires that the similarities are substantial and involve protected elements.
• Rentmeester successfully established ownership of a valid copyright for his 1984 photograph.
• Nike had access to the original photograph, creating a strong presumption of copying.
• The central remaining question is whether Nike copied enough protected expression to constitute substantial similarity.

To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff’s work.

• Determining substantial similarity requires passing both the objective extrinsic test and the subjective intrinsic test.
• The extrinsic test mandates filtering out unprotectable elements such as ideas, public domain material, and stock features before comparing remaining expressions.
• Only the extrinsic test can be decided by the court as a matter of law, making it the primary focus during a motion to dismiss.
• Different mediums vary in how easily they can be dissected into protected and unprotected components.
• While photographs involve various creative choices, individual elements like lighting or camera angle are generally not protected in isolation.

Before that comparison can be made, the court must “filter out” the unprotectable elements of the plaintiff’s work—primarily ideas and concepts, material in the public domain, and scènes à faire.

• Copyright does not grant a monopoly over photographing a particular subject or capturing a specific pose, even if that pose is wholly original.
• A photographer is only protected for the specific expression of a pose through choices like camera angle, timing, and shutter speed.
• Copyright protects the overall selection and arrangement of unprotected elements rather than any individual element standing alone.
• Individual photographic elements function similarly to unprotectable facts in factual compilations, meaning others can borrow them.
• While some photographs receive only thin copyright protection due to limited creative choices, this does not apply to all photographs uniformly.

Without gainsaying the originality of the pose Rentmeester created, he cannot copyright the pose itself and thereby prevent others from photographing a person in the same pose.

• Photographs with a narrow range of creative choices dictated by convention receive only thin copyright protection.
• When a photographer has a broad range of creative choices, the resulting image is granted much broader legal protection.
• Rentmeester deliberately departed from standard basketball photography conventions by using a grassy knoll setting and a ballet-inspired pose.
• These unique artistic decisions regarding composition, lighting, and pose give Rentmeester's photo the right to the broadest possible protection.
• Determining substantial similarity under the extrinsic test relies on whether an ordinary observer would overlook disparities between the works.

Rentmeester chose instead to place Jordan on an open, grassy knoll with a basketball hoop inserted as a prop, whimsically out of place and seeming to tower well above regulation height.

• The court concluded that the two photographs are not substantially similar as a matter of law.
• Rentmeester made creative choices for his photo, and Nike's photographer made his own distinct choices.
• Copyright protects the specific expression of a pose, not the general idea or concept of Jordan leaping.
• Nike's photographer borrowed the general concept of the pose rather than copying its specific details.
• Differences in limb positioning change the visual impact, shifting the sense of motion from horizontal to vertical propulsion.

Rentmeester’s copyright does not confer a monopoly on that general 'idea' or 'concept'; he cannot prohibit other photographers from taking their own photos of Jordan in a leaping, grand jeté-inspired pose.

• Nike's photographer avoided copying the specific outdoor details of Rentmeester's original photo.
• Both images share a conceptual similarity of shooting outdoors with a lone hoop and backboard against the sky.
• Rentmeester placed his hoop at an impossibly high level, adding a whimsical element absent in Nike's realistic height.
• The background elements differ significantly, with Rentmeester featuring a cloudless blue sky and Nike showing a dusk Chicago skyline.
• Differences in the selection, framing, and arrangement of subjects led to the legal conclusion of no copyright infringement.

In Rentmeester’s photo, the hoop is positioned at a height that appears beyond the ability of anyone to dunk on, which further contributes to the whimsical rather than realistic nature of the depiction.

• Rentmeester and Nike photos share general concepts like a ballet-inspired pose and outdoor silhouette.
• Copyright protects expression rather than general ideas to avoid restricting future artistic creativity.
• The Jumpman logo derives from the Nike photo and remains insufficiently similar to the original Rentmeester work.
• Dismissal at the pleading stage is appropriate because visual comparison shows no substantial similarity as a matter of law.
• Discovery is unnecessary since Nike does not contest access and Rentmeester's creative choices are fully accepted.

Permitting him to claim such a right would withdraw those ideas or concepts from the stock of materials available to other artists, thereby thwarting copyright’s fundamental objective of fostering creativity.

• The intrinsic test lacks objective analysis, preventing summary judgment and forcing juries to rely on vague standards.
• Judges have criticized the total concept and feel approach for conflicting with copyright protections for expression over ideas.
• Scholars debate whether the unpredictability of substantial similarity stems from poor guidelines, ignored reader perspectives, or structural flaws.
• Juries frequently struggle to separate evidence admitted for copying in fact from determinations of copying in law.
• Experimental research confirms that knowledge of copying in fact unduly biases human judgment regarding legal similarity.

The result has been to increase unpredictability of outcomes in copyright cases and to stack the procedural deck against plaintiffs on questions of substantial similarity.

• U.S. accession to the Berne Convention created an incentive for copyright holders to include copyright notices to prevent an innocent infringer defense.
• Since 1931, a defendant's mental state regarding infringement has been legally irrelevant, meaning a mistaken belief of non-infringement does not negate liability.
• The innocent infringer defense currently serves to limit liability or mitigate damages rather than providing a complete defense against infringement.
• Scholar Shyamkrishna Balganesh has proposed a new 'foreseeable copying' test to ensure copyright aligns with how other legal areas treat unforeseeable events.
• Another proposed reform suggests adjusting copyright liability and burdens of proof based on whether the infringing conduct is expected to cause actual harm.

Unforeseeable uses are unlikely to be part of a creator’s inducement to create in exactly the same way that unforeseeable consequences are unlikely to be part of an individual’s decision whether to act.

• Requiring plaintiffs to prove substantial harm encourages meritorious lawsuits while discouraging speculative claims.
• Altering the plaintiff's burden of proof helps generate vital information regarding the actual harms and benefits of using copyrighted works.
• Copyright litigation currently fails to provide reliable data on how creative incentives are truly affected.
• Musical copyright infringement cases present unique technical challenges regarding substantial similarity and expert evaluation.
• Courts struggle to determine which musical elements, such as melody versus rhythm, deserve legal protection.

If we hope to improve our understanding over time, we should re-structure the law so that litigation produces the information about harm that we currently lack.

• Oren Bracha argues that training AI models on copyrighted works does not constitute actionable reproduction.
• He compares incidental physical reproduction of data to using an existing copy of a work as a doorstop.
• Exact copies generally support claims of copyright infringement, particularly in cases involving digital piracy.
• Sections 107 through 122 of the Copyright Act establish specific statutory limitations on liability for exact copies.
• Section 108 specifically exempts certain non-commercial exact copies made by qualifying libraries and archives.

Making a new physical copy when the expression embodied in it will be experienced by no one is not any more relevant for copyright than using an existing copy as a doorstop.

• Libraries and their employees may claim copying privileges for non-commercial purposes under specific conditions.
• Qualifying libraries can make up to three copies of unpublished works for preservation, security, or research deposit.
• Published works may be replaced in triplicate if damaged, lost, or obsolete, provided an unused replacement is unavailable at a fair price.
• Digital copies created under these provisions cannot be made available off the library premises to prevent widespread distribution.
• Libraries are shielded from copyright infringement liability for unsupervised equipment use if proper copyright notices are displayed.

To prevent loopholes, such as mass copying by a group, § 108 has further limitations on these reproduction privileges.

• Broadcasters are permitted to make ephemeral copies of certain works for transmission, security, or archival purposes, provided non-archival copies are destroyed within six months.
• Section 117 of the Copyright Act exempts specific exact copies of computer programs from infringement when created as an essential step in running the software.
• Computer program owners are also legally allowed to make archival copies and authorized copies for machine repair or maintenance purposes.
• The broad construction of the reproduction right and substantial similarity standard means nearly all exact copying is technically actionable without statutory exemptions.
• The complex and technical nature of statutory exemptions makes precise wording crucial for determining whether specific types of copying are protected from liability.
• The chapter transitions from analyzing reproduction rights and exemptions to introducing the distribution and importation rights granted under Section 106(3).

Both the language of § 106(1)’s exclusive right of reproduction and the “substantial similarity” test are constructed such that almost all copying—particularly exact copying—can be actionable unless one of the statutory exemptions applies.

• The distribution right allows copyright holders to target third-party distributors of unauthorized copies, raising fairness questions under strict-liability rules.
• This right is strictly limited to physical or electronic material copies and does not inherently apply to streaming due to the lack of a fixed copy.
• Courts remain divided on whether merely making a copyrighted work available constitutes unlawful distribution without proof of actual receipt.
• Legal commentary notes that interpreting distribution as merely 'making available' conflicts with the explicit statutory language requiring actual transfer.
• Statutory comparisons reveal that while publication can include offers to distribute, the distribution right lacks this explicit expansion in the Copyright Act.

Is it fair to hold liable distributors of copies made by someone else, particularly given that copyright infringement is a strict-liability offense?

• Actual distribution is generally required for copyright liability under 17 U.S.C. § 106(3), meaning a mere offer to distribute is not automatically sufficient.
• Plaintiffs unable to prove a specific act of distribution may still succeed by showing statistical probability of distribution using a preponderance-of-the-evidence standard.
• Statistical evidence from peer-to-peer systems or cyberlockers can suffice to prove that actual distribution more likely than not occurred.
• The distribution right is limited by the first-sale doctrine, which originated in case law and was later codified in § 109 of the Copyright Act.
• The Bobbs-Merrill Co. v. Straus case involved an early legal challenge over a publisher attempting to enforce a minimum retail price by threatening copyright infringement claims.

No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

• The defendants sold copies of the copyrighted book at a uniform retail price of 89 cents without the copyright owner's consent.
• The initial wholesale sale occurred without any binding contractual agreement obligating the purchaser to control future retail prices.
• The appellant relies exclusively on statutory copyright law and the conferred right to vend rather than any contractual claims.
• Copyright statutes must be reasonably construed to fulfill congressional intent without undue judicial extension or restriction.
• The core legal question is whether statutory vending rights allow copyright holders to impose resale price restrictions via notices inside books.

What does the statute mean in granting 'the sole right of vending the same?'

• An owner who sells a copyrighted article without restriction parts with the right to control its subsequent sale.
• Purchasers of wholesale books in this case made no agreements or obligations regarding future retail price restrictions.
• The central legal question is whether copyright statutes allow owners to restrict future retail prices merely through a printed notice.
• Copyright statutes protect the right to multiply and sell works, but do not grant the right to impose price limitations on future purchasers without contract privity.
• Extending copyright protection to control all future retail sales via a printed notice exceeds the intended meaning of the statute.

In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract.

• ReDigi developed an Internet platform intended to allow the lawful resale of previously purchased digital music files.
• Plaintiffs, major record companies, sued ReDigi for copyright infringement despite the traditional first sale doctrine.
• The district court and the appellate court both concluded that ReDigi infringed the copyright holders' exclusive reproduction rights.
• ReDigi's software utilized a specialized Music Manager to verify that digital files were originally purchased lawfully from sources like iTunes.
• The system required users to migrate their digital files to a remote server known as the Cloud Locker for resale.

Defendants had created an Internet platform designed to enable the lawful resale, under the first sale doctrine, of lawfully purchased digital music files, and had hosted resales of such files on the platform.

• ReDigi utilizes a method called data migration to transfer digital music files by breaking them into small packets.
• A transitory copy of each packet is created in the user computer buffer before being deleted from permanent storage.
• During this migration process, the digital file cannot be accessed, played, or perceived by the user.
• If connectivity is disrupted mid-transfer, the remnants on the user device become unusable and cannot be re-initiated.
• ReDigi compares this innovation to a train leaving a station, ensuring the entire file never exists in two places at once.

ReDigi describes its primary technological innovation using the metaphor of a train (the digital file) leaving from one station (the original purchaser’s device) and arriving at its destination (in the first instance, ReDigi’s server).

• ReDigi allows users to resell migrated digital music files by giving the new purchaser exclusive access.
• Purchasers can choose to download the file or retain it in a cloud locker for streaming.
• ReDigi employs a monitoring tool called Music Manager to guard against the retention of duplicate files.
• The software continuously scans connected devices and blocks uploads or suspends accounts if duplicates are found.
• Despite these precautions, plaintiffs note that duplicates can still be retained on unlinked devices after a sale.

Suspension of the original purchaser’s ReDigi account does not negate the fact that the original purchaser has both sold and retained the digital music file after she sold it.

• The central legal issue on appeal concerns whether ReDigi version 1.0 lawfully enables the resale of digital files.
• Copyright law grants owners exclusive rights to control both the reproduction and distribution of their copyrighted works under Sections 106(1) and 106(3).
• The first sale doctrine allows a lawful purchaser of a physical item, like a book or physical music record, to resell or transfer that specific copy without copyright infringement.
• While digital file owners are entitled to dispose of their lawfully made phonorecords, Section 109(a) does not address the copyright holder's separate control over reproduction.
• The district court found ReDigi's resales infringed copyrights because transferring the files necessarily involved unauthorized reproduction, a finding the appellate court affirmed.

On the other hand, § 109(a) says nothing about the rights holder’s control under § 106(1) over reproduction of a copy or phonorecord.

• ReDigi argues that its transferred digital files qualify as material objects and thus phonorecords under the Copyright Act.
• The company also claims that its technical process prevents the creation of reproductions by shrinking the original file as the server copy grows.
• The court declines to decide whether the standalone digital file itself qualifies as a phonorecord under the first-sale doctrine.
• The court rejects ReDigi's technical defense, noting that fixing the file on the server and a new device creates new phonorecords.
• Simultaneous deletion of data packets on the user device does not negate the unlawful creation of new phonorecords during transfer.

In the course of transferring a digital music file from an original purchaser’s computer, through ReDigi, to a new purchaser, the digital file is first received and stored on ReDigi’s server and then, at the new purchaser’s option, may also be subsequently received and stored on the new purchaser’s device.

• ReDigi argued that data in a buffer is too transitory to be considered a phonorecord under the law.
• The court found that the resulting files stored on ReDigi's servers and buyers' devices do meet the duration requirement.
• ReDigi's claim of deleting original files does not excuse the creation of unauthorized intermediate reproductions.
• The court rejected the argument that copyright law makes digital resales economically impossible, noting alternative methods like thumb drives.
• Ultimately, the court concluded that ReDigi's platform results in unauthorized reproductions not protected by the first sale doctrine.

We are not free to disregard the terms of the statute merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing destruction of the preexisting phonorecords.

• ReDigi argued that its digital resale platform complies with the first sale doctrine and embodies the principle of technological neutrality.
• The court declined to evaluate the broader economic benefits of ReDigi's marketplace, noting that courts are ill-equipped to weigh such complex trade-offs.
• Unlike physical used goods, digital second-hand merchandise remains pristine and competes directly with primary rightsholders.
• The court emphasized that expanding the first sale doctrine to digital copies exceeds judicial authority and requires legislative action.
• Congress specifically enacted a narrower conception of first sale under Section 109(a) that does not excuse unauthorized reproduction under Section 106(1).

Courts are poorly equipped to assess the inevitably multifarious economic consequences that would result from such changes of law.

• The legal status of cloud-based digital resale models like ReDigi 2.0 remains an open question regarding copyright infringement.
• Scholars debate whether the first-sale doctrine should apply equally to digital copies just as it does to physical ones.
• Section 109(b) restricts the rental and lending of phonorecords and computer programs for commercial advantage to prevent unlawful copying.
• Nonprofit libraries and educational institutions are granted specific exemptions to lend phonorecords and computer programs under certain conditions.
• Motion pictures were intentionally omitted from Section 109(b) restrictions, allowing a thriving rental market to develop before streaming took over.
• The Copyright Act further protects distribution rights by prohibiting the unauthorized importation of copies under Section 602.

That omission is purposeful.

• Importation into the United States of foreign-acquired copies without copyright owner authorization constitutes infringement.
• Section 602 incorporates the distribution rights and limitations of Section 106, including the first-sale doctrine.
• Copyright Act Section 106 grants owners exclusive distribution rights, qualified by limitations in subsequent sections.
• Section 109 codifies the first-sale doctrine, allowing owners of lawfully made copies to dispose of them freely.
• A first sale effectively exhausts the copyright owner's exclusive distribution right under Section 106(3).

In copyright jargon, the "first sale" has "exhausted" the copyright owner's § 106(3) exclusive distribution right.

• The text questions whether the first sale doctrine applies to copyrighted copies that are manufactured outside of the United States.
• Section 602(a)(1) prohibits unauthorized importation of copies acquired abroad, which infringes upon the exclusive right to distribute.
• Previous case law established that the first sale doctrine limits the distribution right, but left open the question regarding foreign-manufactured items.
• The critical legal question hinges on whether the phrase lawfully made under this title excludes copies manufactured abroad.
• The court ultimately holds that the first sale doctrine does indeed apply to copies of a copyrighted work lawfully made abroad.
• The textbook publisher John Wiley & Sons illustrates the issue by assigning publishing rights to a foreign subsidiary with geographic restrictions.

That fact is important because § 109(a) says that the “first sale” doctrine applies to “a particular copy or phonorecord lawfully made under this title.”

• John Wiley & Sons produced two authorized versions of their textbooks: an American version and a lower-priced foreign version.
• Supap Kirtsaeng imported foreign edition textbooks from Thailand to the U.S. with the help of family and profited from reselling them.
• Wiley sued Kirtsaeng for copyright infringement, arguing that unauthorized importation violates their exclusive distribution and import rights.
• Kirtsaeng defended his actions using the first-sale doctrine, claiming he had legitimately acquired lawfully made copies.
• Lower courts ruled against Kirtsaeng, determining that the first-sale doctrine does not apply to foreign-manufactured goods.
• The Supreme Court granted certiorari to resolve conflicting circuit views regarding the geographic limits of the first-sale doctrine.

While he was studying in the United States, Kirtsaeng asked his friends and family in Thailand to buy copies of foreign edition English-language textbooks at Thai book shops, where they sold at low prices, and mail them to him in the United States.

• The court examines whether the phrase "lawfully made under this title" in the Copyright Act imposes a geographical limitation on the first sale doctrine.
• Multiple lower circuits and publishers argue that the phrase restricts the doctrine to copies manufactured domestically within the United States.
• Kirtsaeng counters that the phrase is non-geographical, meaning copies manufactured abroad with the copyright owner's permission still qualify if they comply with the act.
• The court ultimately favors Kirtsaeng's non-geographical interpretation based on statutory language, context, and common-law history.
• A geographical restriction would threaten ordinary scholarly, artistic, commercial, and consumer activities with severe practical harms.
• The court concludes that a non-geographical reading makes better linguistic sense, avoids linguistic difficulties, and combats piracy effectively.

The geographical interpretation, however, bristles with linguistic difficulties.

• The statutory phrase 'under this title' lacks a clear geographical meaning and evades uniform interpretation.
• Reading geographical limitations into the word 'applicable' creates significant complexity regarding the Copyright Act's global reach.
• Statutory provisions such as Section 104 demonstrate that copyright protections extend broadly to foreign works and international creators.
• The Ninth Circuit attempted to resolve these issues by creating a hybrid definition, allowing foreign-made copies first sold domestically.
• Without such qualifications, publishers could strictly control the secondary resale of foreign-manufactured goods within the United States.
• Ultimately, the Court concluded that non-geographical interpretations create fewer linguistic problems and align better with congressional intent.

A publisher such as Wiley would be free to print its books abroad, allow their importation and sale within the United States, but prohibit students from later selling their used texts at a campus bookstore.

• The 1909 Copyright Act protected the transfer of lawfully obtained copies without explicit geographical restrictions.
• A comparison with the current version shows a shift from covering lawful possessors to covering only owners of lawfully made copies.
• This linguistic change specifically excludes lessees, such as 1970s movie theater operators, from claiming first sale protection.
• Statutory interpretation canons suggest that when replacing common law, Congress is presumed to retain the substance of the common law.
• The first sale doctrine has deep historical roots tracing back to Lord Coke in the 17th century against restraints on chattel alienation.

A law that permits a copyright holder to control the resale or other disposition of a chattel once sold is similarly 'against Trade and Traffi[c], and bargaining and contracting.'

• The first sale doctrine relieves courts from enforcing difficult restrictions on movable goods and prevents selective enforcement.
• The doctrine has historically played a vital role in American copyright law for over a century without geographical distinctions.
• A geographical interpretation of the doctrine would undermine basic constitutional copyright objectives of promoting progress.
• Libraries warn that foreign-printed books in their collections would face severe distribution hurdles and high transaction costs.
• Used-book dealers and technology companies argue that geographical restrictions would severely disrupt commerce and consumer rights.

How, the American Library Association asks, are the libraries to obtain permission to distribute these millions of books?

• A geographical interpretation of copyright law could disrupt the resale of everyday goods containing software, such as foreign cars.
• The respondent argued these potential problems were purely theoretical and had not historically disrupted markets.
• The Court disagreed, noting that institutions like museums and libraries deeply rely on the settled protections of the first sale doctrine.
• Adopting a geographical interpretation could force these institutions into complex, impractical permission-verifying processes.
• The Constitution and copyright law do not grant publishers an inherent right to divide international markets or set discriminatory prices.
• Consequently, the Court concluded that a nongeographical interpretation is more persuasive, reversing the Court of Appeals' judgment.

A geographical interpretation would prevent the resale of, say, a car, without the permission of the holder of each copyright on each piece of copyrighted automobile software.

• The author fully concurs with the Court's opinion regarding statutory interpretation.
• Neither the text nor the history of 17 U.S.C. section 109(a) supports stripping first-sale protection from foreign-manufactured copies.
• The combined effect of this decision and Quality King v. L'anza narrows the scope of Section 602(a)(1)'s importation ban.
• This concurrence highlights the practical tension between statutory text and the resulting limitations on unauthorized importation.

I recognize, however, that the combination of today’s decision and Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135 (1998), constricts the scope of § 602(a)(1)’s ban on unauthorized importation.

• The Court declines to undermine the first-sale doctrine under Section 109(a) despite arguments regarding Section 602(a)(1).
• Justice Ginsburg argues in dissent that the Court's ruling misinterprets congressional intent regarding unauthorized importation.
• Copyright owners utilize geographic price discrimination to maximize profits across different global economic regions.
• Arbitrageurs disrupt global pricing structures by importing foreign-made copies into higher-priced domestic markets.
• The legal interpretation hinges on whether the phrase 'lawfully made under this title' applies to items manufactured abroad.

The Court’s parade of horribles, however, is largely imaginary.

• The text analyzes whether the first sale doctrine under Section 109(a) applies to copies manufactured and sold abroad.
• The dissenting view argues that Congress intended Section 109(a) to apply only to copies made within the United States.
• Concerns that excluding foreign-made copies would shutter libraries and used-book dealers are countered by existing legal barriers.
• An authorized first distribution of a foreign-made copy in the U.S. can still exhaust the copyright owner's distribution rights.
• Post-case notes and questions explore the implications for international trade agreements and corporate price discrimination strategies.

The Court sees many “horribles” following from a holding that the § 109(a) phrase “lawfully made under this title” does not encompass foreign-made copies.

• Early American copyright law primarily prohibited only exact copies, meaning translations of copyrighted works did not originally constitute infringement.
• The legal landscape shifted with the 1870 Copyright Act, which allowed authors to reserve the right to dramatize or translate their works.
• Subsequent legislation in 1909 and 1976 progressively expanded these protections, culminating in the exclusive right to prepare derivative works.
• Derivative works include translations, musical arrangements, dramatizations, motion pictures, and other adaptations based on preexisting works.
• Granting rights to derivative markets incentivizes creators to invest more heavily by allowing them to profit from future adaptations like films and translations.

During this time, for example, a federal court held that a German translation of Harriet Beecher Stowe’s Uncle Tom’s Cabin did not infringe Stowe’s copyright in her book, as it was not a copy of her work.

• Copyright incentives grant exclusive rights to create successive works based on original creations.
• This continuum extends from underlying novels to film adaptations and television series.
• Characters from original works eventually manifest as physical dolls, games, and various merchandise.
• Works at the outer reaches of the continuum often bear scant resemblance to the seminal work.
• Intermediate and distant adaptations are frequently connected solely through licensed titles or character names.

The works at the outer reaches of this continuum, and some intermediate works as well, will frequently bear scant resemblance to the expression or the ideas of the seminal work...

• Derivative rights incentivize higher initial investment by allowing copyright owners to capture returns from multiple secondary markets beyond the primary release.
• Exclusive control over derivative markets helps publishers direct their investments toward works with broad, cross-market appeal.
• Granting a single entity control over derivative works prevents wasteful, uncoordinated competition and avoids abandoned projects, aligning with patent prospect theory.
• Critics argue that initial creators may lack the best ideas for derivative works, and exclusive control can lead to inefficient transaction costs or strategic refusals.
• Some scholars propose diminishing or eliminating derivative rights to allow third-party improvers, similar to certain patent law principles.

Coordinated investment in ideas is better than rivalrous investment.

• The reproduction right has expanded to cover substantially similar works, creating confusion about the necessity and distinct boundary of the separate derivative-work right.
• Legislative history of the Copyright Act of 1976 suggests that the derivative-work right is broader because it does not require fixation in a tangible medium.
• Warner Bros. Entertainment Inc. holds exclusive worldwide film distribution rights for the highly acclaimed Harry Potter series.
• Author J.K. Rowling also published non-narrative companion books and announced plans to eventually release a comprehensive Harry Potter encyclopedia.
• Legal analysis of these exclusive rights requires evaluating how well statutory language reflects the distinction between reproduction and derivative works.

It is a tale of a fictional world filled with magical spells, fantastical creatures, and imaginary places and things.…

• Rowling plans to write an encyclopedia featuring alphabetical entries for people, places, and things from her novels.
• The encyclopedia will include both new material and a comprehensive reflection of information from the existing Harry Potter series.
• Rowling has begun preparations by requesting publisher bibles and catalogues from both her U.K. and U.S. publishers.
• Defendant RDR Books is a Michigan-based company that intends to publish a conflicting book titled The Lexicon.
• Steven Vander Ark, a former school librarian, authored the Lexicon based on his popular Harry Potter fan website.

Defendant RDR Books is a Michigan-based publishing company that seeks to publish a book entitled “The Lexicon,” the subject of this lawsuit.

• Steve Vander Ark launched 'The Harry Potter Lexicon' website in 2000 as a comprehensive fan reference encyclopedia.
• The site evolved to include extensive indexed lists, supplemental fan materials, and interactive data run by volunteers.
• Content for the Lexicon is compiled directly from the Harry Potter books, companion guides, and author interviews.
• The website gained high praise and frequent use from J.K. Rowling, her publishers, and film producers alike.
• Vander Ark eventually contacted Rowling's literary agency about collaborating on an official encyclopedia, but was told she intended to work alone.

This is such a great site that I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing).

• Roger Rapoport of RDR Books approached Steve Vander Ark about turning the Harry Potter Lexicon website into a published book.
• Initially, Vander Ark believed that publishing a guide to the Harry Potter world would violate J.K. Rowling's intellectual property rights.
• Vander Ark previously stated publicly that he would not publish the Lexicon in print without permission because Rowling was entitled to that market.
• Rapoport convinced Vander Ark to change his mind by assuring him the project was legal and including an indemnification clause in the contract.
• The resulting Lexicon manuscript is a massive 400-page, alphabetical guide containing 2,437 entries detailing the creatures, characters, and places of the wizarding world.

Vander Ark had even stated on a public internet newsgroup that he would not publish the Lexicon “in any form except online” without permission because Rowling, not he, was “entitled to that market.”

• The Lexicon manuscript was derived from its website, with about half of the material excluded to fit printed space limitations.
• The entries comprehensively compile every character, item, spell, creature, and location from J.K. Rowling's works.
• Each entry synthesizes scattered details from the novels, companion books, and interviews to provide a complete picture.
• Parenthetical citations generally follow the information, referencing book and chapter numbers rather than page numbers due to varying editions.
• The Lexicon occasionally includes external commentary and background information, such as etymological references and analogies.

Vander Ark explained that page numbers were excluded from the citations because the various editions of the Harry Potter books have different pagination, but the chapter numbers remain consistent….

• The Harry Potter Lexicon belongs to the narrow genre of non-fiction reference guides that map out elaborate fictional worlds.
• J.K. Rowling testified at trial that the reference guide took the highlights and secret history of her work, comparing it to plundering the plums in her cake.
• Expert testimony revealed that the Lexicon repeatedly uses Rowling's specific, colorful, and idiosyncratic nouns and phrases.
• The Lexicon contains a troubling amount of direct quotation or close paraphrasing, often without using quotation marks.
• Specific entries, such as those for goblin-made armor and Professor Trelawney, reproduce Rowling's poetic language and major plot twists word-for-word.

She compared this taking of her work to plundering all of the “plums in [her] cake.”

• The Lexicon reproduces exact text from the Harry Potter prophecy while detailing the actions taken by Snape and Voldemort.
• A central point of contention at trial involved Lexicon entries that summarize key scenes, important objects, and major events.
• Plaintiffs' expert argued that these descriptive entries function as plot summaries, whereas the defendant's expert labeled them as character studies.
• The court noted that while the entries encapsulate elements of the plot, they sometimes function more like scene vignettes or support character observations.
• The defendant acknowledges copying specific text but disputes that it constitutes an unlawful appropriation or substantial similarity.

Neither of these characterizations is exactly apt.

• The substantial similarity test evaluates whether copying is quantitatively and qualitatively sufficient to constitute copyright infringement.
• The quantitative component measures the amount copied, which in this case involves 450 manuscript pages drawn from the Harry Potter series.
• The qualitative component examines the copying of protected expression, including fictional facts, character traits, and creative elements.
• Fictional facts invented by the author, such as the attributes of imaginary creatures, constitute protected creative expression under copyright law.
• Rearranging original expression in fragments or a different order does not preclude a finding of substantial similarity.
• The Lexicon features localized similarities through direct quotations and close paraphrases of vivid passages from the original works.

Each of the 2,437 entries in the Lexicon contains “fictional facts” created by Rowling, such as the attributes of imaginary creatures and objects, the traits and undertakings of major and minor characters, and the events surrounding them.

• The court applies a quantitative and qualitative approach to test for substantial similarity because the original and secondary works belong to different genres.
• Evaluating the Harry Potter series in the aggregate is justified because the novels form one coherent narrative rather than discrete tales.
• The Lexicon incorporates substantial material from the series, supporting a finding of substantial similarity through retold small portions.
• Plaintiffs allege the Lexicon violates their right to control derivative works under copyright law.
• The court ultimately finds the Lexicon is not a derivative work because reorganizing material into an A-to-Z reference guide gives it an entirely new purpose rather than simply retelling the story.

By condensing, synthesizing, and reorganizing the preexisting material in an A-to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose.

• Warner Bros. and Castle Rock are rare cases examining the nuanced differences between the reproduction right and the right to prepare derivative works.
• Courts and litigants frequently ignore these distinctions if infringement of at least one right can be successfully established.
• A secondary work that transforms the original expression so much that substantial similarity ceases to exist violates neither right.
• The Second Circuit established that copyright holders retain the exclusive right to derivative markets even if they choose not to exploit them.
• Denying creators a monopoly simply because they decline to saturate derivative markets fails to advance the constitutional goals of the Copyright Act.
• Section 103(a) raises questions about whether copyright protection extends to non-infringing portions of an unlawfully created derivative work.

This paucity of analysis is frustrating for students but is likely because most litigants and courts do not care about the differences so long as they can establish infringement of at least one of these rights.

• Ferdinand Pickett built a guitar shaped after Prince's iconic symbol and subsequently sued Prince for copyright infringement when Prince used a similar design.
• Pickett argued he held a valid copyright in the new elements added to his unauthorized derivative work.
• The Seventh Circuit court highlighted the absurdity of an infringer suing the original copyright owner for creating their own derivative work.
• The court ruled that unauthorized derivative works violate the original creator's exclusive statutory rights under the Copyright Act.
• Section 103(a) does not grant third parties the right to copyright unauthorized derivatives of someone else's intellectual property.

Pickett claims the right to copyright a work derivative from another person’s copyright without that person’s permission and then to sue that person for infringement by the person’s own derivative work.

• Section 103(a) of the copyright law prevents infringers from gaining copyright protection through the unlawful use of preexisting materials.
• Unlawful works like unauthorized translations cannot be copyrighted, but separable lawful parts of a compilation retain protection.
• Jennifer Dumas and Mirage Editions own the copyrights to the popular artwork of the late artist Patrick Nagel.
• Albuquerque A.R.T. Co. purchased authentic Nagel prints and books, mounting the pages onto ceramic tiles for retail sale.
• The copyright holders sued Albuquerque A.R.T. Co., alleging that mounting the prints onto tiles created unauthorized derivative works.
• The legal dispute centers on whether mounting existing prints onto ceramic tiles constitutes a transformation into a derivative work.

There are various ways in which a second comer’s efforts may recast or transform an initial work.

• Copyright protection extends beyond unauthorized copying to include the exclusive right to create derivative works.
• A work qualifies as derivative if it would infringe upon the preexisting work when created without proper consent.
• Mounting copyrighted art images onto tiles constitutes recasting or transforming the work, creating an unauthorized derivative product.
• The statutory language encompasses any form in which a work may be recast, transformed, or adapted, going beyond mere reproduction.
• While the first sale doctrine allows the purchaser to transfer ownership of a purchased book copy, it does not transfer the exclusive right to prepare derivative works.

The mere sale of the book to the appellant without a specific transfer by the copyright holder of its exclusive right to prepare derivative works, does not transfer that right to appellant.

• Annie Lee argued that mounting her notecards and lithographs onto ceramic tiles using epoxy resin created unauthorized derivative works.
• A potential defense under the first sale doctrine suggests that buying authentic copies and reselling them should be legally permissible.
• Section 106(2) grants copyright holders the exclusive right to prepare derivative works, complicating the simple resale argument.
• The district court and appellate review compared mounting art on tiles to placing a painting in a picture frame.
• Changing the display method of a copyrighted work, such as framing or mounting, does not constitute the creation of a new derivative work.

No one believes that a museum violates § 106(2) every time it changes the frame of a painting that is still under copyright, although the choice of frame or glazing affects the impression the art conveys, and many artists specify frames in detail.

• Lee challenges the district court's ruling that A.R.T.'s mounting process lacks the originality required for a derivative work.
• Legal authorities are divided on whether a transformation must be original to qualify as a derivative work under copyright law.
• The court bypasses the originality debate by analyzing whether A.R.T. actually recast, transformed, or adapted the artwork.
• Mounting art onto ceramic does not alter the underlying image, much like framing a painting or matting a photograph does not create a new work.
• Interpreting derivative works to include any minor physical alteration would absurdly criminalize ordinary actions by art collectors and tourists.
• Broadening the definition of derivative works would inadvertently establish an expansive system of moral rights allowing artists to block any modification.

A definition of derivative work that makes criminals out of art collectors and tourists is jarring despite Lee’s gracious offer not to commence civil litigation.

• Examining statutory definitions helps determine what qualifies as a derivative work under copyright law.
• Scholar Pamela Samuelson argues that derivative liability should be limited to claims analogous to the nine exemplary works listed in the statute.
• Samuelson clusters these exemplary works into three distinct categories: shorter versions, faithful renditions, and medium transformations.
• Jessica Silbey and Eva Subotnik criticize the Supreme Court's approach to artist references and the derivative work doctrine.
• The Restatement of Copyright elaborates on the scope of derivative works by emphasizing changes in subject-matter category or medium.

They criticize the Supreme Court for concluding otherwise in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), a case you will study in Chapter VI with regard to fair use.

• Derivative works can be created through transformations like musical arrangements, fictionalizations, and translations.
• Modifications can also involve adding to or subtracting from preexisting works, such as through editorial revisions and abridgments.
• The Nintendo Entertainment System uses game cartridges protected as copyrighted audiovisual works.
• The Game Genie allows players to temporarily alter specific game features by intercepting and replacing data bytes.
• Copyright law grants holders the exclusive right to prepare derivative works, sparking legal debate over devices like the Game Genie.

The Game Genie functions by blocking the value for a single data byte sent by the game cartridge to the central processing unit in the Nintendo Entertainment System and replacing it with a new value.

• Exclusive rights encompass musical arrangements, dramatizations, and fictionalizations of a work.
• Motion picture versions and sound recordings are included as forms of adaptation.
• A work can be recast, transformed, or adapted into various other formats.
• Editorial revisions and annotations count as modifications.
• Modifications that represent an original work of authorship are classified as derivative works.

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.”

• The Copyright Act requires that derivative works physically incorporate a portion of the underlying copyrighted work in some form.
• Unlike the definition of copies, the statutory definition of derivative works lacks any specific reference to fixation.
• The Game Genie does not create derivative works because it merely enhances displays originating from Nintendo cartridges without permanently incorporating them.
• Case law demonstrates that infringing derivative works physically incorporate copyrighted material in a marketable form that supplants demand for the original.
• The existence of a commercial market for a product that enhances viewing does not automatically render that product an unlawful derivative work, much like a kaleidoscope.

For example, although there is a market for kaleidoscopes, it does not necessarily follow that kaleidoscopes create unlawful derivative works when pointed at protected artwork.

• Enhancement tools like the Game Genie do not create infringing derivative works because they merely improve rather than duplicate or replace existing content.
• Technology frequently advances through complementary add-ons, much like spell-checkers operating within pre-existing word processors.
• The text transitions from derivative works to examine whether fictional characters can be copyrighted independently of their visual or textual depictions.
• Determining if a character is copyrightable as such dictates the breadth of ownership rights and whether creators can prevent others from using the character in new works.
• Courts have historically treated characters as independently copyrightable while debating the threshold required to avoid classifying them as mere stock characters.

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recast, a Nintendo game’s output.

• Knopf published and copyrighted The Maltese Falcon before entering an agreement with author Dashiell Hammett.
• Hammett and Knopf granted specific defined rights to Warner Bros. for eight thousand five hundred dollars in 1930.
• An accompanying assignment document transferred only specified usage rights rather than the full copyright itself.
• Warner Bros. claimed acquisition of exclusive rights to the writing, title, and individual characters for media adaptations.
• Hammett argued that unmentioned rights like character usage were retained and could be used in future stories.

It is the position of Hammett and the other defendants, all of whom claim some interest under him, that the rights acquired by Warner are those specifically mentioned in the conveying or granting instruments, and that the exclusive right to the use of the characters and/or their names were not mentioned as being granted

• Dashiell Hammett contracted the use of characters from The Maltese Falcon, including Sam Spade, for radio, television, and motion pictures starting in 1946.
• Warner Brothers claimed copyright infringement by this re-use of characters, story parts, and the whole writing.
• Hammett denied infringement and asked the court to declare his legal rights regarding the characters.
• The trial court denied relief to Warner and assessed costs against them, leading to Warner's appeal.
• The appellate court noted that Warner Bros. was a large, experienced producer presumed to know what it contracted for.
• Because character rights and names were not specifically mentioned in the agreements while other items were, the court ruled the character rights were not granted under the contract.

It would seem proper, therefore, to construe the instruments under the assumption that the claimant knew what it wanted and that in defining the items in the instruments which it desired and intended to take, it included all of the items it was contracting to take.

• The analysis determines that the original contracting parties never intended to buy and sell the future use of the story characters.
• Copyright statutes have historically never explicitly mentioned character protection for sequels, implying Congress did not intend to restrict authors from reusing their own creations.
• Restricting authors from using their characters in subsequent works would undermine the ultimate statutory purpose of encouraging the production of arts.
• Infringement occurs when one writing is copied in substantial part rather than merely sharing characters that act as vehicles for the story.
• Courts differentiate between a character that constitutes the story itself and one that merely serves as a chessman in telling the story.
• Modern jurisprudence, such as the Ninth Circuit test in DC Comics v. Towle, has extended character copyrightability to unique creations like the Batmobile.

Authors work for the love of their art no more than other professional people work in other lines of work for the love of it.

• Literary and graphic characters can enjoy copyright protection under specific legal limitations.
• Denise Daniels developed The Moodsters, a line of five color-coded anthropomorphic characters representing human emotions.
• Daniels pitched her characters to Disney between 2005 and 2009 before Disney developed the movie Inside Out.
• Daniels sued Disney for copyright infringement and breach of an implied-in-fact contract after the release of Inside Out.
• The court affirmed the dismissal of the complaint, ruling that lightly sketched characters lacking consistent traits do not enjoy copyright protection.

Literary and graphic characters—from James Bond to the Batmobile—capture our creative imagination.

• Disney acknowledges that The Moodsters possess the physical and conceptual qualities required for the first prong of the Towle test.
• The legal hurdle lies in the second prong, which mandates that a character must be sufficiently delineated and consistently recognizable.
• Icons like Godzilla and James Bond maintain consistent traits across adaptations, whereas characters lacking core attributes are unprotectable.
• The abstract idea of using color to represent emotions is uncopyrightable and heavily utilized in children's literature.
• The physical appearance of The Moodsters shifted dramatically over time, transforming from insect-like figures into cuddly bears.
• Aside from their association with basic emotions, the characters lack consistent and identifiable behavioral traits across iterations.

In the second generation of toys, The Moodsters look like small, loveable bears.

• Characters in the text relate to emotions uniquely when encountering new events.
• The anger Moodster naturally responds to new situations with anger.
• The sad Moodster reacts to changes by becoming sad.
• Earlier 2007 versions show a similar behavioral pattern among the characters.
• Each character is consistently prone to experiencing one particular emotion.

the “anger” Moodster might become angry, whereas the “sad” Moodster might become sad.

• The Moodsters underwent multiple name changes across iterations, showing a lack of consistent character delineation beyond representing basic human emotions.
• Unlike the Batmobile, which maintained distinct and consistent traits across different media, individual Moodsters lacked comparable identifiable attributes.
• Representing a single emotion through an anthropomorphized character is insufficient to render the characters especially distinctive for copyright purposes.
• The Warner Brothers test for characters that constitute 'the story being told' sets a very high bar that few characters meet.
• The Moodsters fail the Warner Brothers test because the works do not exhibit prolonged character development or study, rendering them mere chessmen in the story.

Although the characters are introduced in the [2005 version], along with short descriptions, these pithy descriptions do not constitute the story being told.

• Section 106A of the Copyright Act introduces moral rights, focusing specifically on rights of attribution and integrity for visual art.
• Originating in European law, moral rights protect an author's personal and reputational connection to their work, distinct from economic rights.
• Article 6bis of the Berne Convention mandates that signatories protect an author's right to claim authorship and object to derogatory modifications.
• Unlike the Berne Convention, the TRIPS Agreement does not require member states to provide protections for moral rights.
• Compliance of the United States with Berne Convention moral rights obligations remains a subject of ongoing legal debate and reliance on existing laws.

Moral rights are often distinguished from 'economic rights,' of which the exclusive rights contained in § 106 are examples.

• The British comedy group Monty Python appealed a denial of a preliminary injunction against ABC to prevent the broadcast of heavily edited versions of their BBC programs.
• The appellate court agreed that the edits made by ABC impaired the integrity of the original comedic work created by the group.
• Under their agreement with the BBC, Monty Python retained significant control over their scripts and recordings, with strict limitations on unauthorized alterations.
• Time-Life Films acquired U.S. distribution rights from the BBC and subsequently licensed the specials to ABC for broadcast with commercial interruptions.
• Monty Python's representatives had assumed the programs would be broadcast in their entirety without the massive cuts required to fit commercial time slots.

We agree with Judge Lasker that the appellants have demonstrated that the excising done for ABC impairs the integrity of the original work.

• ABC broadcasted heavily edited versions of Monty Python specials, omitting nearly a third of the original footage for commercials and content.
• Monty Python was appalled by the mutilation of their work and filed a lawsuit to enjoin the broadcast and seek damages.
• The district judge found that the editing caused irreparable harm and lost the work's iconoclastic verve, yet initially denied the preliminary injunction.
• The court ultimately granted a more limited form of relief requiring an editing disclaimer, which was later appealed.
• The appellate court examined the likelihood of success on the merits, focusing on the substantial 27 percent omission and contract violations.

According to Judge Lasker, “the damage that has been caused to the plaintiffs is irreparable by its nature.”

• Judge Lasker initially denied the preliminary injunction due to uncertainty regarding the recorded program's copyright ownership.
• Appellants argued that ownership of the recording was irrelevant because it was a derivative work based on their uncontested script copyright.
• The court agreed that the BBC's use of the recorded program would be limited by the license granted by Monty Python for the underlying script.
• Licensees who obtain a derivative work from an authorized proprietor generally face no liability for using the underlying work consistently with that license.
• The agreement between Monty Python and the BBC specifically allowed the BBC to license recordings to overseas distributors like Time-Life.
• However, a party that obtains permission to use a copyrighted script for a derivative work is strictly prohibited from exceeding the specific purpose for which that permission was granted.

One who obtains permission to use a copyrighted script in the production of a derivative work, however, may not exceed the specific purpose for which permission was granted.

• ABC broadcasting an edited version of the Monty Python program without consultation exceeded the licensing rights granted by the BBC.
• The ability of a copyright holder to control revisions and prevent unauthorized editing remains paramount in copyright law.
• Because BBC could not convey greater rights than it owned, any permission it gave to Time-Life and ABC to edit was a nullity.
• The omission of terms concerning post-recording alterations in the scriptwriters' agreement effectively reserved exclusive revision authority to Monty Python.
• ABC's argument that licensing inherently grants the right to insert commercials and remove offensive material was unsupported by prior broadcast practices.
• Monty Python's consistent requests for intact broadcasts refute the claim that they should have anticipated deletions and commercial interruptions.

Whether intended to allow greater economic exploitation of the work … or to ensure that the copyright proprietor retains a veto power over revisions desired for the derivative work, the ability of the copyright holder to control his work remains paramount in our copyright law.

• Appellants attempted to reconcile their differences with the network.
• The network faced potential claims of infringement regarding the broadcast.
• The program incorporated a script that the group had retained control over.
• Broadcasting the program in a substantially altered form was restricted.

The network could not, however, free from a claim of infringement, broadcast in a substantially altered form a program incorporating the script over which the group had retained control.

• Copyright law supports recognizing the artist's role by providing legal protection to encourage the production and dissemination of works.
• Appellants are likely to succeed in proving copyright infringement due to the excessive editing of Monty Python programs by ABC.
• Licensees are granted a small degree of latitude for editing, but this privilege does not extend to extreme alterations limited by contracts.
• Extensive cuts may constitute an actionable mutilation of the work, drawing on the continental concept of moral rights.
• Although American copyright law traditionally focuses on economic rights, courts protect artists from misrepresentation using contract law and unfair competition doctrines.

To deform his work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done.

• The court evaluated edited and unedited versions of a Monty Python broadcast to assess the impact of truncation on the comedy.
• Judges concluded that ABC's edited version impaired the integrity of the work and misrepresented the appellants' talents.
• A valid cause of action was recognized under the Lanham Act to prevent the broadcast of distorted versions prior to final determination.
• Judge Gurfein noted in a concurrence that United States copyright law does not formally recognize the moral rights of authors, or droit moral.
• The concurrence emphasizes that the Lanham Act targets misdescription rather than protecting artistic integrity directly.

We find that the truncated version at times omitted the climax of the skits to which appellants’ rare brand of humor was leading and at other times deleted essential elements in the schematic development of a story line.

• Television editing can severely distort comedic material, leaving viewers confused by unexplained narrative jumps.
• Judicial proposals for a mere disclaimer may fail to correct the indelible negative impression left by truncated broadcasts.
• Copyright law addresses unauthorized editing as a breach of license, raising questions about the necessity of moral rights.
• Scholars debate whether statutory attribution and moral rights provide better incentives or remain impracticable compared to contract negotiation.
• The ongoing legal discussion explores how intellectual property laws protect both the financial interests and the reputations of authors.

We are doubtful that a few words could erase the indelible impression that is made by a television broadcast, especially since the viewer has no means of comparing the truncated version with the complete work in order to determine for himself the talents of plaintiffs.

• Copyright owners can often use contracts to restrain distortion or mutilation of their works, but lack contractual control when items are resold to new owners.
• While the Lanham Act may protect against false impressions caused by distortion, its application to the complete destruction of a work remains questionable.
• Legal scholars debate whether moral rights of integrity conflict with the First Amendment by restricting the artistic importance of modifying or destroying art.
• Famous examples like Banksy's self-shredding painting highlight the complex intersection between destruction and the creative process.
• Section 1202 of the Digital Millennium Copyright Act protects copyright management information and serves as a tool for creators to secure attribution.

The urge to destroy is also a creative urge

• The legal case addresses whether Section 43(a) of the Lanham Act prohibits the unaccredited copying of a work.
• General Dwight D. Eisenhower published the book Crusade in Europe in 1948, which was later adapted into a television series.
• The copyright for the television series expired in 1977, leaving the series in the public domain.
• In 1995, Dastar purchased copies of the public domain television series, edited them, and released a new video set.
• Dastar marketed and sold the modified videos as its own product without giving credit to the original Crusade series or book.

Enter petitioner Dastar.

• Respondents sued Dastar for copyright infringement and reverse passing off under the Lanham Act after Dastar sold a video set derived from Eisenhower's book and the Crusade television series without proper credit.
• The District Court ruled in favor of respondents on all counts, awarding and doubling Dastar's profits to deter future misconduct.
• The Ninth Circuit affirmed the Lanham Act liability, concluding that Dastar's bodily appropriation of Fox's series constituted reverse passing off.
• The Supreme Court noted that the Lanham Act was intended to protect against unfair competition and deceptive use of marks, but does not provide a boundless remedy for unfair trade practices.
• The core legal question centers on the definition of origin under the Lanham Act, specifically whether it refers to the producer of the physical goods or the creator of the underlying work.

If "origin" refers only to the manufacturer or producer of the physical "goods" that are made available to the public (in this case the videotapes), Dastar was the origin.

• The legal dispute centers on the precise meaning of the term origin of goods under § 43(a)(1)(A) of the Lanham Act.
• Passing off involves a producer misrepresenting their own goods as those of another party.
• Reverse passing off is the exact opposite practice, where a producer claims someone else's goods or services as their own.
• A related copyright claim involving General Eisenhower's manuscript and its tax treatment created a triable issue for the Ninth Circuit.
• The ongoing copyright litigation regarding the manuscript's work-for-hire status was not directly before the current court.
• Dictionary definitions describe origin as the fundamental source from which anything comes into being.

Passing off (or palming off, as it is sometimes called) occurs when a producer misrepresents his own goods or services as someone else’s.

• The dictionary definition and natural understanding of the 'origin of goods' refers to the producer of the tangible product sold in the marketplace, not the creator of the underlying ideas.
• Section 43(a) of the Lanham Act prohibits consumer deception and trademark infringement, focusing on the physical product rather than who originally conceived the idea.
• Although communicative products like books and videos convey intellectual content, extending trademark law to cover content creators risks conflicting with copyright law.
• Patent and copyright laws are carefully crafted bargains that allow the public to use expired works freely and without attribution.
• Over-extending trademark protections into areas traditionally governed by patent or copyright law is dangerous and inconsistent with legislative purpose.
• Federal trademark law exists to reduce shopping costs and protect source-identifying marks, rather than to reward manufacturers for innovation or invention.

The right to copy, and to copy without attribution, once a copyright has expired, like the right to make an article whose patent has expired—including the right to make it in precisely the shape it carried when patented—passes to the public.

• Expanding the Lanham Act to cover misrepresentation of authorship for uncopyrighted works would create a mutant copyright law that conflicts with expired copyright public rights.
• Congress explicitly created limited rights of attribution in specific legislation like the Visual Artists Rights Act, meaning a broad interpretation under the Lanham Act would render those statutory limitations superfluous.
• Interpreting 'origin' to require attribution for uncopyrighted materials creates severe practical problems because the lineage of creative works often extends endlessly backward.
• Tracing the true origin of historical footage reveals a complex web of creators, from military branches to newsreel cameramen, rather than a single corporate distributor.
• Manufacturers of communicative products would face impossible legal dilemmas, risking liability both for failing to credit creators and for crediting them in ways that imply sponsorship.

We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries.

• The Lanham Act phrase origin of goods refers to the producer of tangible goods rather than the author of underlying ideas.
• Extending trademark law to cover creative authorship would create an impermissible species of perpetual copyright and patent.
• Creative works lacking copyright protection or with expired terms are not entirely without alternative legal avenues.
• Misrepresentation claims under the Lanham Act may still apply if promotional materials deceive purchasers about a product's true nature.
• Scholarly debate persists regarding whether Dastar broadly restricts trademark claims for works still protected by active copyrights.

To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright, which Congress may not do.

• Authors of visual art retain the right to disclaim authorship and prevent prejudicial modifications of their work.
• The statute strictly defines works of visual art to include unique pieces or very limited, numbered editions.
• Exclusions from VARA are broad, explicitly barring posters, maps, commercial items, and works made for hire.
• Judicial interpretation enforces these statutory limitations stringently, narrowing the scope of protected media.
• VARA moral rights last for the author's lifetime, remain nontransferable, and can only be exercised by the creator.

VARA’s scope is narrowed by the provisions limiting coverage to painting, drawings, prints or sculptures produced in a single copy or in certain “limited editions,” and photographs hewing to these limitations and which also are produced for “exhibition purposes only.”

• Section 113(d) dictates that waivers regarding the removal of visual art from buildings post-VARA must be explicit, in writing, and signed by both the author and the building owner.
• Moral rights under VARA remain subject to the general statutory limitations imposed by the Copyright Act's fair use provision in section 107.
• Unlike moral rights frameworks in other jurisdictions, VARA intentionally omits a right of disclosure to control how or when a work is first made public.
• VARA also fails to provide a right of withdrawal, which in countries like France allows authors to pull their works from the market under specific conditions.

Finally, VARA does not grant certain moral rights recognized in other countries.

• Defendants-Appellants appealed a district court judgment concluding that G&M Realty owner Gerald Wolkoff violated the Visual Artists Rights Act of 1990.
• Wolkoff enlisted artist Jonathan Cohen in 2002 to transform dilapidated warehouses in Long Island City into 5Pointz, a major global center for aerosol art.
• The 5Pointz site featured both permanent and rotating works governed by an elaborate system of norms overseen by Cohen.
• When Wolkoff sought to demolish the site for luxury apartments, artists unsuccessfully attempted to preserve it through landmark status and fundraising.
• After a preliminary injunction was denied, Wolkoff swiftly deployed workmen to whitewash the art overnight before the court's written opinion could issue.
• The appellate court ultimately affirmed the lower court's ruling that the artwork was protected by VARA and that the violation was willful.

That night, Wolkoff began to destroy the artwork.

• The district court initially denied a preliminary injunction, suggesting monetary damages could remedy potential VARA violations.
• Following the destruction of the artwork, additional artists filed lawsuits that were subsequently consolidated for trial.
• The court ultimately found that 45 of the works achieved recognized stature and that Wolkoff willfully violated VARA by destroying them.
• Judicial findings praised the technical mastery of the works, comparing them to pieces worthy of prominent museum display.
• While VARA allows for actual or statutory damages, the court declined to award actual damages due to the inability to reliably fix market value.

More specifically, the court observed that the works “reflect[ed] striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz.”

• The court awarded maximum statutory damages after finding Wolkoff acted willfully in destroying the artwork.
• Judge Block dismissed Wolkoff's excuse for whitewashing and ruled his actions stemmed from pure pique and revenge.
• The total penalty reached $6.75 million, calculated as $150,000 for each of the 45 affected works.
• The Visual Artists Rights Act (VARA) establishes crucial moral rights including the right of attribution and integrity.
• VARA protects visual artists by granting them the specific right to prevent the destruction of works of recognized stature.

Instead, he found that Wolkoff acted out of “pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art.”

• Authors hold moral rights under the statute preventing intentional distortion, mutilation, or modification of their protected works.
• Specific statutory provisions govern artworks incorporated into buildings, detailing rules for removal, destruction, and required written waivers.
• The central dispute in the appeal concerns whether the works at 5Pointz qualified as works of recognized stature.
• Recognized stature is defined as high quality or status acknowledged by the relevant artistic community.
• Courts rely on expert testimony and substantial evidence rather than their own legal training to judge artistic worth.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of visual art.

• Appellants failed to meet the high legal bar required to exclude temporary works from statutory protections.
• The court rejected the contention that temporary artworks are inherently disqualified from achieving recognized stature.
• Congress established a specific definition of visual art within the statute without mentioning duration.
• Adding an unwritten requirement of permanence would inappropriately disrupt the balance achieved by the legislature.
• Historical examples from New York City demonstrate that temporary installations can indeed achieve recognized stature.

To do so would be to upset the balance achieved by the legislature.

• Temporary installations like Christo's The Gates and Banksy's street art demonstrate that ephemeral works hold immense cultural significance and artistic merit.
• The transient nature of famous artworks, such as Banksy's self-destructing painting, often enhances their recognition and value rather than diminishing it.
• The district court noted that while Congress did not impose strict duration limits under VARA, it did require that protected works be fixed for more than a transitory duration.
• The 5Pointz artworks easily satisfied the statute's minimal durational requirement because they survived far longer than a few minutes or seconds.
• Wolkoff's argument that artists should have expected destruction is countered by VARA, which strictly requires written waivers or proper notice before removal.
• Because Wolkoff failed to execute the required written instruments or provide the mandated 90-day notice, the destruction of the 5Pointz art violated the statute.

Famously, Banksy’s Girl with a Balloon self-destructed after selling for $1.4 million at Sotheby’s, but, as with Banksy’s street art, the temporary quality of this work has only added to its recognition.…

• Wolkoff appealed the district court's decisions, arguing errors regarding recognized stature, timing of the assessment, and reliance on curation testimony.
• The appellate court found no clear error in Judge Block's findings, affirming that the focus remained properly on pre-destruction recognition.
• The court upheld the use of Jonathan Cohen's curation process as valid evidence of an artist's stature and merit.
• Reviewing an artist's portfolio and project plan prior to painting acts as an effective screening method for artistic quality.
• The prominence of the 5Pointz site itself was deemed relevant evidence contributing to the recognized stature of the works displayed there.

An artist whose merit has been recognized by another prominent artist, museum curator, or art critic is more likely to create work of recognized stature than an artist who has not been screened.

• Appellants challenged the district court's award of damages, specifically regarding the finding of willfulness.
• Wolkoff admitted he knew artists were pressing VARA claims before destroying 5Pointz and deliberately chose to whitewash it immediately.
• Wolkoff testified that he would make the exact same decision today, proving a deliberate choice to bypass statutory notice procedures.
• Legislative history and case law indicate that an artist's pre-existing standing in the community is relevant to recognized stature.
• Various court notes highlight complex interpretations of VARA remedies, including whether damages apply to attribution claims and the necessity of copyright standards.

Wolkoff did not help his cause when he later reminded the district court that he 'would make the same decision today.'

• Examining whether derivative harms like game alterations or summaries constitute moral harms under copyright law.
• Analyzing the debate over whether VARA should apply broadly to all copyrightable works instead of only visual art.
• Exploring the dispute between the Charging Bull and Fearless Girl sculptures regarding whether altering a work's surrounding context violates moral rights.
• Questioning whether museum exhibition choices could face liability if placement distorts an artist's original message.
• Reviewing Kerson v. Vermont Law School, which established that concealing murals does not violate VARA's integrity rights.
• Introducing the exclusive rights of public performance and public display granted under Sections 106(4) and 106(5) of the Copyright Act.

Di Modica objected, stating that the placement of Fearless Girl, and its visual interaction with Charging Bull, changed the meaning of his sculpture.

• Copyright law grants owners exclusive rights over specific categories of creative works including literary, musical, and audiovisual creations.
• The statute explicitly defines the terms 'perform' and 'display' to cover various methods of rendering, playing, or showing copies of a work.
• Exclusive rights apply solely to public performances or displays, leaving private performances completely outside the copyright owner's statutory control.
• A performance or display is legally considered 'public' if it occurs in a place open to the public or gathers a substantial group outside normal family and social circles.
• Transmitting a performance to the public via any device or process also qualifies as a public display regardless of where or when receivers experience it.

That formulation means that there is a category of private performances and displays over which the statute gives a copyright owner no control.

• Maxwell's Video Showcase appealed a damages award of $44,750 for copyright infringement.
• The infringement stemmed from the stores' exhibition of copyrighted films in private in-store viewing booths.
• Customers selected films from a catalogue and paid fees based on group size and time of day to use the booths.
• Employees in the front of the store played the selected video cassettes, transmitting the images to the rear viewing rooms.
• Although access to each room was limited to renting groups, the stores themselves were open to the general public.

Closing the door of the viewing room activates a signal in the counter area at the front of the store.

• Plaintiffs alleged that showing video cassettes in private booths constituted unauthorized public performance under copyright law.
• Defendants held a distribution license, but copyright owners retain all underlying rights not expressly disposed of.
• Playing a video cassette satisfies the statutory definition of performing a motion picture.
• A performance is public if it occurs in a place open to the public or where a substantial number of non-family persons gather.
• Maxwell's operation is essentially a movie theater with privacy, making it a place unquestionably open to the public.
• Private viewing in booths does not alter the fundamental public nature of the establishment's business.

Simply because the cassettes can be viewed in private does not mitigate the essential fact that Maxwell’s is unquestionably open to the public.

• Transmitting a performance to the public, even in private settings like hotel or viewing rooms, constitutes a public performance under copyright law.
• The timing of when recipients view the performance does not alter its legal status as a public performance.
• Repeatedly playing the same single copy of a work to different members of the public at different times constitutes a public performance.
• The first sale doctrine allows the owner of a lawfully made copy to dispose of it, but it does not forfeit the copyright owner's exclusive right to public performance.
• Showcasing video cassettes on-site while maintaining physical control is analytically indistinguishable from operating a public theater.

Plainly, in their showcasing operation, the appellants do not sell, rent, or otherwise dispose of the video cassette.

• Legal analysis examines whether a video store screening room constitutes a public performance space under copyright law.
• Courts have held that private viewing booths within commercial establishments still qualify as public places if made available to any member of the public.
• The availability and willingness of a business to serve the general public determine the public nature of the performance rather than the physical enclosure.
• In contrast to video stores, courts have distinguished hotel room movie rentals as private performances rather than public ones.
• The distinction between public and private spaces heavily influences copyright infringement liability for transmitted or displayed media.

A telephone booth, a taxi cab, and even a pay toilet are commonly regarded as “open to the public,” even though they are usually occupied only by one party at a time.

• Plaintiffs argued that Cablevision's proposed RS-DVR system would directly infringe their copyrights through buffer storage, hard disk copies, and transmissions.
• The district court agreed with all three arguments, granting summary judgment to plaintiffs and enjoining Cablevision from operating without licenses.
• Cablevision conceded that streaming recorded programming is a performance, but argued the customer—not Cablevision—was the one performing and copying.
• Cablevision also claimed playbacks were not transmissions 'to the public' because they emanated from distinct copies uniquely associated with a single customer.
• The appellate court reviews the district court's grant of summary judgment de novo while examining the Copyright Act's definitions and the 'transmit clause'.

Cablevision also argued that such a playback transmission was not 'to the public,' and therefore not a public performance as defined in the Copyright Act, because it 'emanates from a distinct copy of a program uniquely associated with one customer’s set-top box and intended for that customer’s exclusive viewing in his or her home.'

• The legal dispute centers on whether Cablevision's RS-DVR system transmits copyrighted works 'to the public.'
• The parties agree that the case does not implicate the first clause regarding public places and social gatherings.
• The statute's transmit clause requires courts to evaluate whether a performance is transmitted to the public.
• Statutory language clarifies that recipients can receive transmissions in different places and at different times.
• Cablevision argues that because each transmission uses a unique copy for a single subscriber, only one person can receive it.
• The court focuses its analysis on the specific potential audience capable of receiving a given transmission.

Cablevision contends that … the transmission is not “to the public” under the transmit clause….

• The district court evaluated whether Cablevision's RS-DVR playbacks were "to the public" by looking at the entire subscriber base for a given program.
• This approach concluded that any playback constitutes a public performance because multiple viewers might watch the same content at different times.
• The appellate court found this interpretation irreconcilable with the actual language of the transmit clause in copyright law.
• The transmit clause specifically focuses on the audience capable of receiving a particular transmission rather than the underlying copyrighted work.
• Adopting the district court's view would render the statutory phrase "to the public" entirely meaningless surplusage.
• The existence of the transmit clause inherently contemplates that non-public transmissions can and do exist.

Indeed, such an approach would render the “to the public” language surplusage.

• Plaintiffs argued that Cablevision transmits the exact same original performance during both live cablecasts and RS-DVR playbacks.
• This theory implies that the public nature of a transmission depends on the potential audience of any prior transmission of the same work.
• Such an interpretation would absurdly make Cablevision liable based on the independent actions of legal strangers like Comcast.
• The court concluded that each distinct act of transmission creates its own unique performance rather than perpetuating an original one.
• Because the RS-DVR system transmits content using a copy made by a single subscriber, its audience is exclusively that one person.
• The interplay between the right of reproduction and the right of public performance provides sufficient copyright protection without strained interpretations.

Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public.

• The identity of the transmitter and the source material limit the potential audience of a transmission.
• Courts have previously found that showing the same unique copy of a work seriatim to different members of the public constitutes a public performance.
• The use of a unique copy is relevant to determining whether a transmission is made to the public.
• RS-DVR playback transmissions made to a single subscriber using a unique copy are not performances to the public.
• This specific ruling does not give content delivery networks a blanket exemption from all forms of copyright liability.

Because each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, we conclude that such transmissions are not performances “to the public,” and therefore do not infringe any exclusive right of public performance.

• The legal distinction between public and private performances raises complex questions regarding digital transmissions.
• In Bell v. Wilmott Storage Services, the Ninth Circuit ruled that displaying a copyrighted photo via a specific URL constitutes a public display.
• The Copyright Act of 1976 grants copyright owners the exclusive right to perform their works publicly.
• The Transmit Clause includes transmitting a performance to the public regardless of whether receivers are in the same place or time.
• The Supreme Court evaluated whether Aereo infringed copyright by streaming broadcast television over the Internet.
• Aereo's system used thousands of individual antennas and servers to transmit live television programs to subscribers for a fee.

Although a member of the public could not access the photo by simply visiting Wilmott's website …, Wilmott's server was continuously transmitting the image to those who used the specific pinpoint address or were conducting reverse image searches using the same or similar photo.

• Aereo saves requested data into a subscriber-specific folder on its hard drive.
• The system creates a personal copy of the chosen television program for the subscriber.
• Streaming begins over the Internet once a few seconds of the program have been saved.
• Subscribers can watch the delayed stream on various Internet-connected devices.
• Aereo emphasizes that data streamed to each user comes exclusively from their own dedicated personal copy.
• When multiple users watch the same show, Aereo activates separate antennas and creates distinct copies and transmissions for each.

When two subscribers wish to watch the same program, Aereo’s system activates two separate antennas and saves two separate copies of the program in two separate folders.

• Television producers and copyright owners sued Aereo for copyright infringement, arguing that its streaming system publicly performed their copyrighted works.
• Lower courts initially denied a preliminary injunction, concluding that Aereo's individual streams to subscribers constituted private transmissions rather than public performances.
• The Supreme Court granted certiorari to determine whether Aereo actually 'performs' and whether it does so 'publicly' under the Transmit Clause.
• Aereo defended its system by arguing it merely supplied equipment that emulated a home antenna and digital video recorder at the subscriber's direct command.
• Examining the statutory purpose and historical context of the 1976 Copyright Act amendments reveals that Congress intended to sweep cable-like precursors within the scope of the law.
• Prior judicial precedent historically struggled with categorizing community antenna television systems, distinguishing between passive carriers and active broadcasters.

It does no more than supply equipment that “emulate[s] the operation of a home antenna and [digital video recorder (DVR)].”

• Early court rulings compared CATV providers to ordinary television viewers who merely enhanced their reception.
• Congress rejected these rulings in the 1976 Copyright Act amendments to expand the definition of 'perform.'
• The newly enacted Transmit Clause clarified that entities communicating performances to the public are performing publicly.
• Aereo's modern system functions similarly to historical CATV systems despite technical differences.
• Although Aereo remains inert until a subscriber requests a program, it ultimately performs and transmits content like a cable provider.

In contrast, Aereo’s system remains inert until a subscriber indicates that she wants to watch a program.

• The dissent argued that Aereo's subscribers select the copyrighted content and transmit the performance, distinguishing Aereo from traditional cable.
• The majority viewed Aereo as overwhelmingly similar to cable companies targeted by 1976 amendments despite minor technological differences.
• The distinction of how signals are intercepted and rerouted means nothing to the subscriber or the broadcaster.
• The court concluded that Aereo functions as a traditional cable system rather than a mere equipment supplier and thus performs copyrighted works.
• The court then addressed whether Aereo performs the works publicly under the Transmit Clause.

Here the signals pursue their ordinary course of travel through the universe until today’s “turn of the knob”—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet.

• The court assumes arguendo that transmitting a performance means communicating contemporaneously visible images and audible sounds.
• When a subscriber selects a program, Aereo streams it over the Internet to that specific user via a device or process.
• Under this assumed definition, Aereo successfully transmits a performance whenever its subscribers watch a program.
• The central question remains whether Aereo transmits this performance 'to the public' as required by the statute.
• Aereo argues its transmissions are not public because each subscriber uses a dedicated antenna and receives a unique personal copy.
• Because only one subscriber has the ability to see and hear each individual transmission, Aereo claims it avoids public transmission.

Aereo’s system makes from those signals a personal copy of the selected program.

• Aereo's behind-the-scenes technological differences from traditional cable systems do not change its fundamental commercial objectives or the subscriber viewing experience.
• Congress intended to protect copyright holders equally from the unlicensed activities of Aereo and traditional cable companies.
• The statutory text of the Transmit Clause indicates that an entity may transmit a performance through multiple, discrete transmissions rather than just a single act.
• The ability of the public to receive performances at different times explicitly confirms that a single performance can be communicated through multiple separate transmissions.
• The use of user-specific personal copies by Aereo remains a process of transmitting a performance under the Copyright Act, meaning it still performs the same work.

One can sing a song to his family, whether he sings the same song one-on-one or in front of all together.

• Aereo transmits television programs to subscribers who constitute "the public" under the Copyright Act.
• The Transmit Clause applies regardless of whether recipients view the content in the same place or at different times.
• The court concludes that Aereo performs copyrighted works publicly within the meaning of the law.
• Aereo's argument that this ruling will harm other new technologies is rejected by the court.
• Future technologies like cloud computing and remote DVRs should await cases where they are squarely presented.

This fact does not help Aereo, however, for the Transmit Clause expressly provides that an entity may perform publicly "whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times."

• The Supreme Court reversed the Court of Appeals decision and remanded the Aereo copyright case for further proceedings.
• Justice Scalia dissented, arguing that Aereo does not 'perform' copyrighted works and therefore cannot be held directly liable for public-performance infringement.
• Scalia criticized the majority opinion for relying on an improvised standard resembling cable television rather than established service-provider liability rules.
• Copyright infringement is divided into direct liability for personal conduct and secondary liability for encouraging or profiting from third-party infringement.
• The central legal question is whether Aereo or its subscribers are the ones actually performing the work when the watch button is pushed.

The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come.…

• The Supreme Court's new cable-TV-lookalike rule lacks clear criteria for determining when it actually applies.
• Alternative benchmarks, such as covering automated live-broadcast recording or using the government's integrated-system test, fail to provide a coherent boundary.
• The reliance on a vague totality-of-the-circumstances test effectively means resorting to ad hoc, case-by-case evaluations.
• It will take years or even decades to figure out which automated systems fall under traditional rules versus the new Aereo treatment.
• Despite the Court's promises, the imprecision of its ruling threatens to unintentionally destabilize cloud-storage providers and other technologies.

That leaves as the criterion of cable-TV-resemblance nothing but th’ol’ totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation).

• Aereo's unauthorized use of copyrighted programming should not be allowed, but the Copyright Act should not be distorted to forbid it.
• The role of the Court is to apply existing law, not to identify and plug legislative loopholes.
• Congress is better equipped than the judiciary to update the Copyright Act in a targeted, less disruptive manner.
• Historical parallels like the VCR case demonstrate that dire predictions about new technologies often drive courts toward judicial overreach.
• The proper judicial response is to apply the law as written and leave technological policy decisions to Congress.

We came within one vote of declaring the VCR contraband 30 years ago in Sony Corp. of America v. Universal City Studios, Inc.

• Justice Scalia argued that user volition determines direct versus secondary copyright infringement liability.
• Compulsory licensing under the Copyright Act serves as a potential legislative solution for technological copyright challenges.
• Perfect 10 sued Google and Amazon for facilitating access to copyrighted photographs of nude models.
• Google Image Search uses lower-resolution thumbnail images stored on its own servers in response to queries.
• Google provides HTML instructions that direct user browsers to display full-size images from third-party websites.

That fact is significant because volition separates direct infringers from those who may be secondarily liable.

• The text examines potential copyright liability under the public-display right for online intermediaries like search engines and social media platforms.
• Technical methods such as in-line linking and framing allow a webpage to incorporate and display content from different computers into a single window.
• Google's search cache stores webpage text as it appeared during indexing, but specifically excludes storing images from those pages.
• Perfect 10 operates a subscription website for copyrighted images and licenses reduced-size versions for cell phones, while restricting access via passwords.
• When third-party publishers post Perfect 10 images without authorization, Google's search engine indexes them and provides thumbnail versions.
• Perfect 10 claims that Google's search engine directly infringes both its exclusive display rights and distribution rights.

The process by which the webpage directs a user’s browser to incorporate content from different computers into a single window is referred to as “in-line linking.”

• The district court evaluated whether Google violated Perfect 10's display and distribution rights through infringing thumbnails and full-size images.
• The court applied the server test, determining that displaying an image requires storing and serving the electronic information directly to the user.
• Under the server test, in-line linking or framing without storing the electronic information does not constitute a direct display infringement.
• The appellate court agreed with the district court's resolution, noting it comports with the language of the Copyright Act.
• The court examined the definitions of display, copies, and fixation under sections 101 and 106(5) of the Copyright Act.

Conversely, the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.

• A photographic image is fixed in a tangible medium and creates a copy when stored on a computer server.
• Google directly infringes display rights by storing and communicating thumbnail versions of copyrighted images.
• Google does not store full-size images when using in-line linking and framing, meaning it does not have a copy under the Copyright Act.
• Providing HTML instructions merely directs a browser to a third-party website and constitutes contributory liability rather than direct infringement.
• Consumer confusion regarding whether an image belongs to a single webpage is protected under trademark law, not copyright law.

Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act.

• Google's active storage and communication of thumbnail images distinguishes it from passive bulletin board hosts regarding copyright liability.
• The Ninth Circuit established the server test, determining that displaying content stored on another entity's server does not constitute a public display of a copy.
• Courts in the Southern District of New York have explicitly rejected the server test, arguing that incorporating an image into a public display violates rights regardless of storage location.
• Critics of the server test argue it relies on purely technical distinctions rather than the plain language and intent of the Copyright Act.
• Beyond general fair use, the Copyright Act provides specific statutory limitations on public-performance and display rights.

At heart, the Court’s holding eschewed the notion that Aereo should be absolved of liability based upon purely technical distinctions.

• Section 109(c) allows the owner of a lawful copy to display it publicly to viewers present at the location without copyright owner authorization.
• This display exemption does not extend to unauthorized possessors or the transmission of images to other locations.
• Historically, the 1909 Copyright Act limited public-performance rights to dramatic and musical works performed for profit.
• Courts previously wrestled with whether background music in restaurants constituted a performance for profit.
• The 1976 Act removed the ambiguous 'for profit' requirement, replacing it with specific statutory exemptions like Section 110.

The Court reasoned that even if customers don’t pay admission to the restaurant or pay directly for the music, they are paying for the total experience at the restaurant rather than just the food, which can likely be had more cheaply elsewhere.

• Litigation regarding the homestyle provision clarifies that commercial satellite equipment used in bars does not qualify for private home exemptions.
• Section 110(5)(B) provides narrow exceptions for small commercial establishments based on square footage and equipment types.
• Section 110(1) and (2) protect educational performances during face-to-face teaching and qualifying distance learning programs.
• Specific exceptions are granted for religious services, non-profit agricultural fairs, and charitable veteran or fraternal social functions.
• Special provisions ensure that copyrighted materials can be performed via transmissions targeted to visually or hearing-impaired audiences.

There has been some litigation over what sort of equipment qualifies as the “kind commonly used in private homes.”

• Section 111 creates a compulsory license for cable systems retransmitting distant broadcast television signals.
• Section 119 provides a similar compulsory-license framework tailored for satellite systems intended for home viewing.
• The Second Circuit ruled in WPIX, Inc. v. ivi, Inc. that internet retransmission services do not qualify as cable systems under Section 111.
• Legislative history shows Congress enacted Section 111 specifically to address poor television reception and support localized cable expansion.
• Extending compulsory licenses to nationwide internet transmissions would conflict with the original localized purpose of the statute.
• The text transitions next to exploring the complex tangle of copyright rules and industry practices governing the music industry.

Is there any thread that ties these exceptions together coherently? Or are these a hodgepodge of special indulgences that are the product of interest group lobbying?

• Copyright in the music industry relies on the fundamental distinction between musical compositions and sound recordings.
• Musical compositions represent the underlying sheet music or instructions, while sound recordings embody a specific performance of a song.
• Federal copyright law did not protect sound recordings at all until 1972, leaving them previously governed by state laws.
• A single musical composition can be embodied in multiple distinct sound recordings, each potentially owned by different artists or labels.
• Artists like Phoebe Bridgers can record their own versions of existing musical compositions without needing permission from the composition's copyright owners, provided certain conditions are met.
• Songwriters traditionally assign their composition copyrights to music publishing companies in exchange for a share of licensing royalties.

There can be (and often is) more than one sound recording of a particular musical composition.

• Copyright owners in musical compositions hold standard exclusive rights including reproduction, distribution, and performance.
• Reproduction and distribution rights for non-dramatic musical works are subject to the section 115 compulsory license.
• Dramatic musical works like operas are explicitly excluded from the section 115 compulsory license framework.
• Anyone can make a mechanical reproduction or cover of a copyrighted composition by paying a statutory fee.
• A compulsory license becomes available only after the copyright owner has authorized an initial public distribution.
• Arrangements made under a compulsory license must not change the basic melody or fundamental character of the original work.

This is referred to, colloquially, as a cover.

• Section 115 of the Copyright Act allows copyright owners and licensees to negotiate their own terms and rates rather than relying on mandatory statutory rules.
• The current statutory fee is set at 12.7 cents per physical copy or 2.45 cents per minute, while streaming royalties gradually rise to over 15 percent by 2027.
• Copyright Royalty Judges periodically revise these statutory rates.
• While some licensees use the statutory NOI process, most have historically relied on intermediaries like the Harry Fox Agency to administer licenses.
• The Harry Fox Agency often grants licenses with streamlined payment rules and rates substantially below the statutory defaults, though its role is shrinking under the Music Modernization Act.

Instead, they have historically contracted with the Harry Fox Agency, a New York City-based firm, founded in 1927, which has long acted as a middleman between a large number of “affiliated” owners of copyrighted musical compositions and those seeking compulsory licenses.

• Copyright law utilizes property rules to require permission and negotiation for exclusive rights usage.
• The Section 115 compulsory license operates as a liability rule, allowing musical composition use without permission for a statutory fee.
• The historical shift began in the 1890s when player piano rolls and phonographs transformed music from strictly live performances to mechanical reproduction.
• The Supreme Court initially ruled in White-Smith Publishing Co. v. Apollo Co. that machine-readable piano rolls were not legally copies.
• Congress responded to the 1909 Copyright Act by overturning the court's decision and enacting a compulsory license primarily to prevent Aeolian from monopolizing the player piano market.
• This legislative intervention against a single dominant corporation ultimately laid the legal foundation for the modern cover song.

Because it was afraid of one company—Aeolian [then the dominant player piano manufacturer].

• Compulsory licensing rules allow musicians to record cover songs freely by paying a statutory fee.
• This legal framework has fostered a vibrant musical culture of continuous revival, remaking, and reinterpretation.
• While many iconic songs were born from this freedom, compulsory licenses also permit versions that original creators may despise.
• Scholars note that permissive cover rules historically disadvantaged Black artists through exploitative mirror recordings by white performers.
• Unlike entire compositions, the Copyright Act provides no compulsory license for sampling parts of musical works.

allowing good songs to become great and, sometimes, we must admit, classics to be butchered.

• The Copyright Act lacks a compulsory license for public performances under section 106(4), unlike mechanical reproductions.
• Every public airing, radio broadcast, or live cover song constitutes a public performance of the underlying musical composition.
• This massive licensing requirement led to the creation of intermediaries known as performing rights organizations, or PROs.
• Major PROs like ASCAP, BMI, SESAC, and GMR offer blanket licenses granting access to entire catalogs of musical works.
• Blanket license fees and revenue distributions are calculated using complex and secret formulas.
• The two largest PROs, ASCAP and BMI, operate under historical antitrust consent decrees with the Department of Justice.

And every band performing cover songs in a bar involves a public performance of a musical composition.

• Consent decrees were established to prevent ASCAP and BMI from abusing their market power through blanket licensing.
• A key provision allows licensors to petition a federal judge for a binding reasonable fee if rate negotiations fail.
• The rise of digital distribution has created friction between major publishers and the traditional PRO structures.
• A 2014 court ruling determined that publishers cannot partially withdraw digital rights while keeping others in ASCAP.
• In 2016, the Department of Justice officially rejected publisher requests to modify the decrees to allow partial withdrawals.

That is, the publishers must withdraw all public performance rights or none.

• ASCAP and BMI petitioned the Antitrust Division to terminate or modify consent decrees to allow partial withdrawal of works.
• The DOJ investigated whether consent decrees permitted fractional licenses or required full-work licenses for multi-owner compositions.
• The Second Circuit rejected the DOJ's interpretation, ruling that the decrees did not explicitly address fractional licensing.
• Consequently, the DOJ rejected the request to terminate or modify the consent decrees, leaving them in place.
• The text introduces 'sync rights' as privately negotiated licenses for combining music with audiovisual works.
• The Music Modernization Act of 2018 enacted significant reforms to music copyrights, including mechanical licensing and protection for pre-1972 sound recordings.

Those courts held that the decrees did not address fractional licensing one way or the other and that restrictions on the PROs’ conduct that were not explicitly provided in those decrees would not be inferred.

• Title III of the MMA introduces the AMP Act to direct a share of licensing revenues to music producers, mixers, and engineers.
• The Musical Works Modernization Act establishes a compulsory blanket license for digital music providers.
• Covered activities under this blanket license include permanent downloads, limited downloads, and interactive streams.
• The blanket license, effective January 1, 2021, is administered by a designated mechanical licensing collective.
• Digital music providers must meet specific statutory criteria regarding direct relationships with users and reporting capabilities.

Under 17 U.S.C. § 115(d)(1) as revised by the MWMA, a digital music provider can obtain a compulsory license for “covered activities,” which is defined as “making a digital phonorecord delivery of a musical work, including in the form of a permanent download, limited download, or interactive stream.”

• The blanket license covers the reproduction and distribution of musical works necessary for digital music providers.
• It explicitly excludes public performance and synch rights, which require separate licensing.
• Compliance with the blanket license protects digital music providers from copyright infringement actions for authorized activities.
• The legislation establishes a Mechanical Licensing Collective to manage a comprehensive musical works database and facilitate copyright owner payments.
• Digital music providers must submit a notice of license to the MLC, which has specific grounds and procedures for acceptance or rejection.
• Providers may also pursue negotiated voluntary licenses in lieu of the statutory blanket license.

Note that the blanket license applies solely to the reproduction and distribution of musical works; it covers neither the right of public performance, which must be licensed separately from one or more performance rights organizations, nor synch rights, which must be licensed from the musical composition copyright owner.

• Section 115 establishes a new willing buyer and willing seller standard for copyright royalty rate-setting.
• This replaces previous considerations that balanced public availability, fair return, and market disruption.
• Despite expectations of higher rates under the new standard, the Phonorecords IV proceeding resulted in only modest increases.
• Initial ownership of sound recordings typically vests in the recording artists who create them, or their employers for hire.
• Recording artists traditionally transferred ownership to labels for advances and royalties, but now increasingly use non-owning intermediaries.

And in the first rate-setting to use the new standard, it appears to have done little to push up rates.

• Sound recordings receive notably narrower copyright protections compared to most other forms of copyrighted works.
• Federal copyright protection for sound recordings was only established recently in 1972, long after musical compositions were protected.
• Pre-1972 sound recordings were historically protected solely by state law rather than federal legislation until the CPAA passed in 2018.
• Sound recording copyright owners generally lack a broad right of public performance under both state and federal law.
• Traditional broadcast radio stations do not need a license from sound recording copyright owners to play recordings, unlike musical composition owners.
• Section 106(6) and the CPAA grant limited digital audio transmission performance rights to sound recording owners.

The absence of a general right of public performance for sound recordings means that there is no license required from the sound recording copyright owner when a broadcast radio station plays a recording.

• Section 114(b) explicitly limits the reproduction and derivative-work rights of sound recording copyright owners.
• Sound-alikes and covers are legally permitted because copyright infringement requires direct copying of actual recorded sounds.
• Unauthorized sampling involves copying and remixing actual audio segments, which implicates both composition and sound recording rights.
• While de minimis copying of musical compositions is generally not actionable, courts remain divided on whether this exception applies to sound recordings.
• In VMG Salsoul v. Madonna, the plaintiff alleged that a 0.23-second horn snippet from 'Love Break' was illicitly sampled for Madonna's song 'Vogue'.

The only use of the sound recording that can violate that right is straight-up copying of the actual sounds in the recording—i.e., piracy—or copying of the actual sounds from a discrete piece of the sound recording—i.e., sampling.

• The district court granted summary judgment to Defendants, ruling that any alleged copying was trivial.
• The appellate court affirmed, holding that a general audience would not recognize the brief snippet in Vogue.
• The court rejected the argument that Congress eliminated the de minimis exception for sound recordings.
• Plaintiff alleges that Madonna and Pettibone sampled a horn hit from the song Love Break when recording Vogue.
• The disputed sample consists of very brief single and double horn hits repeated throughout portions of the tracks.

We hold that the “de minimis” exception applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions.

• The legal analysis remains unaffected by whether the disputed element is labeled a horn part or something else.
• The commercial versions of Vogue incorporate specific patterns of single and double horn hits at precise timestamps.
• Expert transcriptions compared the composition of the horn hits between Love Break and Vogue.
• The district court previously granted summary judgment on the grounds that the horn hit lacked originality or constituted de minimis use.
• Evidence of actual copying, including sworn testimony and expert reports, created a genuine issue of material fact for the court.
• Proof of actual copying alone is insufficient to establish copyright infringement under governing legal authority.

Plaintiff has submitted evidence of actual copying.

• Unauthorized use of a copyrighted work is only actionable if the copying is substantial enough to constitute infringement.
• Trivial copying is legally permissible under the principle of de minimis non curat lex, meaning the law does not concern itself with trifles.
• A use is considered de minimis only if the average audience would fail to recognize the appropriation.
• Copyright claims involving musical compositions must be evaluated using a generic rendition, removing elements unique to specific performances.
• The court examines specific copied passages in the score, such as horn hits, to determine whether the appropriation exceeds the de minimis threshold.

This principle reflects the legal maxim, de minimis non curatlex (often rendered as, “the law does not concern itself with trifles”).

• Defendants copied at most a quarter-note single horn hit and a full measure containing rests and a double horn hit.
• The court applied precedent from the Newton case regarding whether an average audience would recognize the appropriation.
• The sampled snippets in this case were significantly shorter and less frequent than the six-second, forty-time sample in Newton.
• Unlike Newton, where an entire temporal segment was copied, this sampling involves only a single instrument group.
• The court concluded that a reasonable jury could not find that an average audience would recognize the appropriation.

That case involved a copyrighted composition of 'a piece for flute and voice.'

• Copyright infringement claims involving sound recordings focus on how musicians play the notes to distinguish the recording from a generic version.
• The defendant sampled a single horn hit lasting only 0.23 seconds, which was then transposed, truncated, and heavily modified.
• Additional sounds, effects, and instrument tracks were layered over the modified horn hit to create the final song.
• A reasonable average audience would likely not recognize the brief and altered horn hit as an appropriation without careful attention.
• Even a qualified expert initially misidentified the source material, underscoring how difficult it is to discern the sampled elements.

In other words, a highly qualified and trained musician listened to the recordings with the express aim of discerning which parts of the song had been copied, and he could not do so accurately.

• Plaintiff argues that the de minimis exception does not apply to sound recordings, citing a Sixth Circuit precedent.
• Copyright law has long required a substantial portion to be copied for infringement to occur, based on public recognition.
• Except for the Sixth Circuit and its followers, courts consistently apply the de minimis doctrine across all copyright cases.
• Statutory text under Title 17 treats sound recordings identically to all other categories of protected works without exception.
• Nothing in the statutory definition of sound recordings suggests Congress intended to eliminate the de minimis rule.

If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content.

• Copyright law grants owners exclusive rights regarding reproduction, derivative works, distribution, performance, and display of their works.
• The statute outlines specific limitations on these rights, particularly concerning independent fixations that imitate existing sound recordings.
• Courts hesitate to interpret express statutory limitations as implicit expansions of copyright holder rights without clear congressional intent.
• A new recording that closely mimics an original does not constitute infringement provided there was no actual physical copying.
• Legislative history confirms that section 114 was designed to limit rather than expand the exclusive rights of copyright holders.

A new recording that mimics the copyrighted recording is not an infringement, even if the mimicking is very well done, so long as there was no actual copying.

• Statutory protection for sound recordings under section 114(b) applies strictly to the particular recorded sounds.
• Imitating a recorded performance deliberately does not constitute copyright infringement as long as no actual copying occurs.
• Legislative history demonstrates that Congress did not intend to expand the rights of sound recording copyright holders.
• The de minimis exception applies to copyrighted sound recordings just as it does to all other copyrighted works.
• The Sixth Circuit analyzed the inclusion of the word entirely in the Copyright Act of 1976.

Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.

• Bridgeport incorrectly interpreted Section 114(b) by claiming sound recording owners have the exclusive right to sample their own recordings.
• The court rejected Bridgeport's dismissal of legislative history based on the timeline of digital sampling technology.
• Bridgeport's legal interpretation rests on a fundamental logical fallacy by inferring the inverse of a conditional statement.
• A statutory exception stating rights do not apply in one specific circumstance does not mean rights automatically apply in all other circumstances.
• Analogies like rain and dry grass demonstrate why failing to consider alternate conditions distorts statutory logic.

A statement that rights do not extend to a particular circumstance does not automatically mean that the rights extend to all other circumstances.

• The Sixth Circuit previously argued that sampling a sound recording constitutes a physical taking of value rather than an intellectual one.
• The court disagreed with this rationale, noting that physical takings occur in other art forms like photography where the de minimis rule still applies.
• Supreme Court precedent establishes that copyright protects expressive aspects of a work rather than the mere labor of the author.
• By affirming the application of the de minimis exception to sound recordings, the court deliberately creates a circuit split with the Sixth Circuit.
• The court concluded that policy arguments regarding the ease of enforcing bright-line rules should be addressed by Congress rather than the judiciary.

Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport.

• The plaintiff alleges the defendants illegally copied a portion of their copyrighted sound recording without a license.
• The text argues that unauthorized sampling of a sound recording constitutes theft, regardless of how small the portion is.
• The author criticizes the majority opinion for rejecting established Sixth Circuit precedent requiring licenses for any exact sampling.
• Statutory law grants sound recording copyright holders the exclusive right to sample their own works.
• Policy arguments regarding licensing costs and creativity involve value judgments that should be left to the legislature.

In any other context, this would be called theft. It is no defense to theft that the thief made off with only a “de minimis” part of the victim’s property.

• Copyright holders of sound recordings possess exclusive rights to reproduce or alter the actual fixed sounds.
• Statutory law explicitly permits independent imitation or simulation of copyrighted sound recordings, such as by tribute bands.
• The dissenting view argues that sampling constitutes a physical taking rather than an accidental or intellectual inspiration.
• Because digital sampling intentionally copies a fixed performance, the legal inquiry should focus on whether sampling occurred rather than the amount used.
• The majority opinion contends that copyright protects expression rather than mere labor or the physical sweat of the author.

This is a physical taking, not an intellectual one.

• The author defends Bridgeport's bright-line rule requiring a license for any digital sampling of fixed sound recordings.
• Congressional silence for eleven years following the Bridgeport decision suggests implicit legislative approval of the rule.
• Creating a circuit split undermines the intended predictability and uniformity of federal copyright laws.
• The majority's vague 'substantial' inquiry contrasts sharply with the clear standard of getting a license.
• The dissenting opinion asserts that even small portions of copyrighted sound recordings constitute tangible property that cannot be taken without permission.

Get a license or do not sample.

• Digital audio sampling lacks de minimis protection, yet personal CD ripping has historically occurred without legal challenge.
• The legal status of personal music copying remains largely untested under the fair use doctrine.
• Tolerated personal copying appears driven more by social norms and expectations than strict copyright law.
• The Audio Home Recording Act of 1992 attempted to regulate digital audio tape technology and consumer copying.
• The AHRA established a royalty pooling system and crucially provided a noncommercial use exemption for consumers.

The seeming immunity of personal copying of music to copyright challenge appears to arise more from norms and social expectations than from law, strictly speaking.

• Section 1008 of the Audio Home Recording Act exempts noncommercial personal recording from copyright infringement claims.
• Historically, the recording industry viewed private copies as infringing, despite clear congressional intent to protect home use.
• General purpose computers are notably excluded from the AHRA, creating a statutory ambiguity for modern digital music copying.
• Judicial interpretations, such as the Diamond Multimedia case regarding the Rio MP3 player, have extended space-shifting protections to personal devices.
• Subsequent rulings like the Napster and Denso cases clarify that computers and specific car CD copiers fall outside the strict definition of AHRA recording devices.

The Rio merely makes copies in order to render portable, or “space-shift”, those files that already reside on a user’s hard drive.

• Sound recording copyright owners lack a general public performance right under Section 106(4), but gained a limited right for digital audio transmissions via Section 106(6).
• Section 114 exempts traditional free, over-the-air digital broadcasts from these digital performance licensing requirements.
• Internet webcasters are subject to Section 106(6) rights because the broadcast exemption strictly applies to over-the-air transmissions.
• Non-interactive digital transmissions qualify for a statutory license managed by SoundExchange for royalties.
• Interactive services like Spotify must negotiate direct licenses because they allow users to request specific sound recordings.
• The distinction between interactive and non-interactive transmissions is based on how much the service interferes with traditional record sales.

Distinguishing digital audio transmissions that are “interactive” from those that are not was initially a vexing task, but one which has become clearer over time.

• Non-interactive services like Pandora can obtain statutory licenses for digital audio transmissions under Section 114.
• Eligibility requires strict compliance with specific conditions, including avoiding pre-announcements and adhering to transmission limits.
• The sound recording performance complement strictly limits how many songs from the same artist or album can be played within a three-hour window.
• Experts originally predicted in 1995 that non-interactive services would dominate the digital music streaming market.
• Interactive services like Spotify and Apple Music ultimately became more powerful by offering consumer choice and direct label licensing.
• Non-interactive services have been weighed down by expensive, long-running disputes over statutory licensing rates.

A full account of those battles is well beyond the scope of an introductory copyright course.

• Previous chapters covered bright-line rules and technical limitations on copyright infringement liability.
• This chapter introduces fair use, which functions as a wide-ranging, flexible legal standard rather than a fixed rule.
• Fair use is developed by courts on a case-by-case basis, making its application less clear-cut.
• Legal analysis often contrasts rules (which are clearer to apply) with standards (which achieve justice across diverse situations).
• Fair use in the U.S. traces its origins to Justice Joseph Story's 1841 opinion in Folsom v. Marsh.
• Folsom v. Marsh established that determining justifiable use involves balancing factors like the nature, quantity, and market impact of the copied materials.

In general, rules are costlier to promulgate but are easier and clearer to apply than standards.

• Early legal doctrines distinguished between legitimate criticism using quoted material and piracy that sought to replace the original work.
• Courts originally developed analytical frameworks to help defendants demonstrate that their use of copyrighted material constituted fair use.
• Congress codified the four statutory fair use factors in section 107 of the 1976 Act to govern copyright infringement cases.
• The four statutory factors include the purpose of use, the nature of the work, the amount used, and the market effect on the original work.
• Statutory factors are explicitly non-exhaustive, allowing courts to consider additional germane facts and evidence in their analysis.
• Subsequent legal cases explore foundational and contemporary applications of fair use across traditional media, internet technologies, and AI.

A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty ….

• Harper & Row secured exclusive publishing and first serial rights for Gerald Ford's memoir, including his reflections on the Nixon pardon.
• Time magazine agreed to pay $25,000 for the exclusive right to print 7,500-word prepublication excerpts from the manuscript.
• An unauthorized copy of the manuscript was secretly leaked to Victor Navasky, editor of The Nation, prior to publication.
• The Nation quickly published a 2,250-word scoop containing quotes and facts drawn from the stolen manuscript.
• Consequently, Time canceled its scheduled article and refused to pay the remaining $12,500 installment, leading to a copyright infringement lawsuit.
• While lower courts disagreed on fair use, the underlying purpose of copyright is to reward authors to ultimately benefit the public.

Two to three weeks before the Time article’s scheduled release, an unidentified person secretly brought a copy of the Ford manuscript to Victor Navasky, editor of The Nation, a political commentary magazine.

• Copyright owner rights are limited by statutory exceptions such as the traditional doctrine of fair use under § 107.
• The Nation used between 300 and 400 words of verbatim quotes from an unpublished manuscript, arrogating the right of first publication.
• The Copyright Act intends to codify the pre-existing common-law doctrine of fair use requiring a case-by-case determination.
• Courts historically implied consent for reasonable use to prevent inhibiting subsequent writers from improving upon prior works.
• Justice Story established that citing the most important parts to supersede the original work is deemed piracy rather than fair use.

In using generous verbatim excerpts of Mr. Ford’s unpublished manuscript to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right.

• Fair use traditionally applied only to published works based on the author's implied consent to reasonable use.
• Common-law copyright granted authors absolute property rights over their unpublished creations.
• Equitable factors like de facto publication could sometimes tip the balance in favor of prepublication use.
• The unpublished status of a plaintiff's work has historically tended to negate the fair use defense.
• Unauthorized publication severely infringes upon an author's fundamental right to control when their work is first made public.

Under common-law copyright, the property of the author in his intellectual creation was absolute until he voluntarily parted with the same.

• Fair use applies to both published and unpublished works, but analysis must always be tailored to the individual case.
• The right of first publication is uniquely tied to exclusivity and commercial value.
• The unpublished nature of a work serves as a key factor tending to negate a defense of fair use.
• An author's commercial right to choose when to publish deserves as much protection as personal privacy.
• Assuring authors the leisure to develop ideas free from expropriation outweighs any short-term news value of premature publication.

First publication is inherently different from other § 106 rights in that only one person can be the first publisher; as the contract with Time illustrates, the commercial value of the right lies primarily in exclusivity.

• The Second Circuit recognizes that copyright balances First Amendment freedoms and copyright protection by allowing the sharing of facts while safeguarding an author's specific expression.
• Copyright ensures that creators of factual narratives can market their original expression as fair compensation for their investment.
• Expanding fair use to allow the immediate publication of a public figure's memoirs would destroy copyright protection and eliminate incentives for creating such works.
• The newsworthiness of an author's chosen words does not justify the unauthorized copying of their expression prior to official publication.
• Copyright was intended by the Framers to act as the engine of free expression by providing economic incentives to create and share ideas.

In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression.

• Denying robust copyright protection to works of high public importance contradicts the fundamental premise of copyright law.
• The existing balance between expression and facts within the Copyright Act, alongside fair use, makes a separate public figure exception unnecessary.
• Fair use remains a mixed question of law and fact that must be decided on the unique circumstances of each individual case.
• Statutory guidelines outline four specific factors to evaluate fair use, starting with the purpose and character of the use.
• Although news reporting is a recognized purpose under the statute, simply exploiting the headline value of infringement exceeds fair use.
• Commercial publication purposes weigh against a finding of fair use, creating a strong presumption of unfairness.

The Nation has every right to seek to be the first to publish information. But The Nation went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement...

• The crux of the profit distinction focuses on whether a user profits from copyrighted material without paying the customary price.
• The Nation intentionally sought to scoop the forthcoming memoirs, supplanting the copyright holder's right of first publication.
• Fair use presupposes good faith, yet The Nation knowingly exploited a purloined manuscript without consent.
• The scope of fair use is significantly narrower for unpublished works compared to published ones.
• The author's right of first publication encompasses control over when, where, and how a work is initially released.
• The Nation's clandestine publication infringed upon confidentiality and creative control, making it difficult to qualify as fair use.

Fair use presupposes good faith and fair dealing. The trial court found that The Nation knowingly exploited a purloined manuscript.

• The court must examine the amount and substantiality of the copyrighted portion used in relation to the whole work.
• Although the quoted words were small in absolute terms, The Nation took the qualitative heart of Gerald Ford's manuscript.
• The copied verbatim material constituted at least 13 percent of the infringing article and served as its dramatic focal points.
• The final and most important fair use factor is the effect of the use on the potential market or value of the copyrighted work.
• The infringement directly caused actual market damage, including Time canceling its serialization contract and withholding payment.

The Nation took what was essentially the heart of the book.

• Extensive prepublication quotations from unreleased manuscripts without consent threaten the marketability of first serialization rights.
• The Court of Appeals incorrectly excused the infringement based on public interest and overlooked the unpublished nature of the work.
• The qualitative importance of the quoted passages outweighed the argument that the taking was merely infinitesimal.
• Traditional fair use doctrine does not sanction unauthorized prepublication excerpts of copyrighted materials.
• Congress has not established a compulsory license permitting unfettered access to unpublished expressions of public figures.
• Dissenting opinions warned that zealous protection of copyright owner prerogatives might stifle the broad dissemination of ideas.

Although the Court pursues the laudable goal of protecting “the economic incentive to create and disseminate ideas,” this zealous defense of the copyright owner’s prerogative will, I fear, stifle the broad dissemination of

• The dissenting opinion criticizes the Court for relying on an exceedingly narrow definition of fair use.
• The majority's failure to distinguish between information and literary form leads to an incorrect copyright violation finding.
• This narrow approach inappropriately permits the monopolization of information and curtails the free use of knowledge.
• The decision risks undermining the robust public debate essential to self-government in order to protect economic interests.
• Liability was imposed simply because The Nation successfully provided newsworthy information to the public first.

The Court’s exceedingly narrow approach to fair use permits Harper & Row to monopolize information.

• J.D. Salinger successfully sued a biographer and publisher for copyright infringement over the use of his unpublished letters.
• The Second Circuit's ruling suggested that unpublished works generally enjoy near-complete protection against copying under fair use.
• In response to the perceived absolute bar on fair use for unpublished works, Congress amended the Copyright Act in 1992.
• The 1992 amendment clarified that an unpublished status does not automatically bar a finding of fair use if all statutory factors are considered.
• A new case involving Sony's Betamax video tape recorders raises questions about the legality of consumer home recording of broadcast television.

the comedian, ancient and unclothed, is brandishing his walking stick—attached to the stick, and horribly resembling a lifeless rodent, is one of Chaplin’s vital organs.

• The Betamax introduced advanced recording features like a separate tuner, re-usable tapes, and an automated timer.
• Users could pause recordings to skip commercials or use fast-forward during playback to bypass unwanted segments.
• Surveys revealed that the primary use of the machine was time-shifting, allowing viewers to watch missed programs later.
• Despite time-shifting, a substantial number of users also accumulated permanent tape libraries.
• Studies showed that ownership of a Betamax did not decrease the amount of regular television watched.
• Copyright holders in sports, religion, and education offered no objection to home recording of their content.

Although there were some differences in the surveys, they both showed that the primary use of the machine for most owners was “time-shifting”—the practice of recording a program to view it once at a later time, and thereafter erasing it.

• Surveys indicate that the vast majority of VTR owners use their machines primarily for time-shifting programs they would have otherwise missed.
• Copyright owners brought a contributory infringement suit against Sony, alleging that Betamax users infringed their copyrights.
• The central legal question is whether the Betamax is capable of commercially significant noninfringing uses.
• Private, noncommercial home time-shifting is identified as a legitimate fair use that satisfies this standard.
• Evidence showed that time-shifting may actually enlarge the total viewing audience and that many producers allow it.
• An injunction against the device would improperly deprive the public of the ability to record noncopyrighted or consented material.

The Copyright Act provides the owner of a copyright with a potent arsenal of remedies against an infringer of his work, including an injunction to restrain the infringer from violating his rights.

• Plaintiffs challenged the weight of testimony regarding infringing versus noninfringing uses.
• Station manager John Kenaston testified that many educational programs explicitly authorize some form of home taping.
• Fred Rogers expressed no objection to home taping for noncommercial use, viewing it as a service to families.
• Copyright law states that certain unauthorized uses are not automatically considered infringements.
• The doctrine of fair use under section 107 protects noncommercial activities like private home time-shifting.

He testified that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times….

• Congress directs the evaluation of how a copyrighted work's potential market or value is affected by its use.
• Noncommercial uses do not require prohibition unless they cause demonstrable harm or threaten the copyright's potential market if widespread.
• Commercial uses carry a presumption of harmful impact, whereas noncommercial uses require proof of a meaningful likelihood of future harm.
• The respondents failed to prove that home time-shifting without librarying caused significant harm to the copyright owners.
• Plaintiffs ultimately expressed a philosophical concern over losing control of their programs rather than proving actual market damage.

Plaintiffs’ greatest concern about time-shifting is with ‘a point of important philosophy that transcends even commercial judgment.’ They fear that with any Betamax usage, ‘invisible boundaries’ are passed: ‘the copyright owner has lost control over his program.’

• Plaintiffs' predictions of harm rely heavily on speculation regarding audience viewing patterns and ratings.
• Plaintiffs admitted that no actual harm to their copyrights has occurred to date.
• The District Court rejected fears that live audiences and associated advertising revenues would decrease due to Betamax use.
• Evidence suggested that time-shifting might actually aid plaintiffs by increasing original audiences and enhancing rerun market value.
• The District Court ultimately concluded that any potential harm from time-shifting is speculative and minimal.

Most of plaintiffs’ predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA’s president, calls a ‘black art’ because of the significant level of imprecision involved in the calculations.

• The District Court concluded that home time-shifting of television programs provides societal benefits and qualifies as fair use.
• Justice Blackmun's dissent argues that home VTR recording is an ordinary, unproductive use that adds nothing new to the copyrighted work.
• Blackmun asserts that copyright grants authors the right to limit access, and free public airwaves do not extinguish this control.
• While certain trivial unproductive uses may be considered fair, courts must be cautious about depriving authors of protection from ordinary uses.
• The dissent emphasizes that isolated minor infringements, when multiplied, become a major aggregate inroad on copyright that must be prevented.

Copyright gives the author a right to limit or even to cut off access to his work.

• Requiring proof of actual harm from speculative new technologies could permanently devalue copyrights as technical advances emerge over time.
• Copyright owners need only demonstrate a reasonable possibility of harm from a proposed use, especially when that use provides no broad public benefit.
• Studios identified multiple potential threats from VTR recording, including reduced theater attendance, lower rental and sale revenues, diminished rerun audiences, and compromised advertising revenue.
• The District Court applied an incorrect substantive standard and improperly placed the burden of uncertainty on the studios rather than the potential infringer.
• Fair use analysis requires evaluating the potential market for or value of the copyrighted work, meaning infringers cannot prevail simply by showing a lack of net harm.

The District Court’s reluctance to engage in prediction in this area is understandable, but, in my view, the court was mistaken in concluding that the Studios should bear the risk created by this uncertainty.

• The Studios presented expert testimony claiming that both time-shifting and librarying decrease revenue from copyrighted works.
• District Court findings demonstrated substantial library-building and frequent avoidance of commercials by users.
• Surveys from both sides indicated that the average Betamax user owned between 25 and 32 tapes.
• The Studios' survey revealed that at least 40 percent of users maintained more than 10 tapes in a library.
• Sony's survey showed that over 40 percent of users planned to watch their recorded tapes more than once.
• Data from both parties confirmed that commercials were skipped or avoided at least 25 percent of the time.

The Studios' survey showed that at least 40% of users had more than 10 tapes in a “library”; Sony’s survey showed that more than 40% of users planned to view their tapes more than once; and both sides’ surveys showed that commercials were avoided at least 25% of the time.

• The advent of VTR technology created a significant potential market for copyrighted television programs that studios are being deprived of exploiting.
• Time-shifting has a substantial adverse effect upon the potential market for the studios' copyrighted works, disqualifying it as a fair use.
• Personal use of unauthorized copies is not protected by copyright law, as purely consumptive uses lack productive benefit.
• Time-shifting is noncommercial only in the sense that stealing jewelry to wear it rather than resell it is noncommercial.
• VTR owners record entire works to create exact substitutes, violating statutory factors regarding the amount used and market effect.

It is clear, however, that personal use of programs that have been copied without permission is not what § 107(1) protects.

• The statute requires courts to evaluate the effect of a given use on the potential market for a copyrighted work.
• The VTR created an entirely new market for time-shifting television programs, enabling viewers to watch broadcasts at their convenience.
• Because time-shifting involves copying, the copyright owners are entitled to share in the economic benefits of this new market.
• In economics, market failure occurs when resources are inefficiently allocated, often requiring legal intervention to correct externalities.
• Copyright markets can similarly experience flaws and high transaction costs that prevent efficient consensual exchanges between parties.
• Fair use is a doctrine courts use to approve a user's departure from the traditional market when market failures or flaws occur.

In economics, market failure is understood to be a situation in which the market does not allocate goods or services efficiently, typically leading to a net loss of social welfare.

• Wendy Gordon's framework attributes fair use justifications to market failures that prevent copyright transactions.
• High transaction costs coupled with low anticipated profits create a barrier where socially valuable transfers fail to occur.
• Positive externalities like education and scholarship provide broad societal benefits that the marketplace fails to properly internalize.
• Copyright owners sometimes exhibit anti-dissemination preferences, such as blocking criticism, which makes consensual licensing unavailable.
• Changes in market and technological facts over time challenge the long-term stability of fair use determinations.

When a defendant’s works yield such ‘external benefits,’ the market cannot be relied upon as a mechanism for facilitating socially desirable transactions.

• Jack Valenti famously compared the VCR to the Boston Strangler during congressional testimony.
• Content owners sued Sony for copyright infringement, fearing the technology would destroy their businesses.
• This fear proved entirely unfounded as the plaintiffs ultimately lost their legal battle.
• The industry subsequently unlocked massive revenues through prerecorded video sales.
• These historical outcomes raise questions about how well copyright owners judge their own long-term business interests.

the VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone.

• In 1964, Roy Orbison and William Dees wrote the rock ballad 'Oh, Pretty Woman,' which was copyrighted by Acuff-Rose Music, Inc.
• The rap group 2 Live Crew wrote a comical parody of the song in 1989 and sought permission to use it, offering credit and payment.
• After Acuff-Rose refused permission, 2 Live Crew released their parody anyway, prompting a copyright infringement lawsuit.
• The Supreme Court granted certiorari to determine whether a commercial parody could be considered a fair use under the law.
• The fair use doctrine requires a case-by-case analysis to prevent copyright law from stifling the creativity it aims to foster.

We granted certiorari to determine whether 2 Live Crew’s commercial parody could be a fair use….

• The four statutory factors of fair use must be explored and weighed together in light of copyright purposes.
• The first fair use factor examines the purpose and character of the use, focusing heavily on whether a work is transformative.
• Transformative works add new expression, meaning, or message, thereby advancing the constitutional goals of copyright law.
• Parody possesses an inherent claim to transformative value by commenting on and shedding light on an earlier work.
• Unlike parody, satire generally requires greater justification for borrowing because it can stand on its own two feet.

Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

• Courts must exercise close judgment when evaluating permissible borrowing in parodies and critical works.
• Automatic injunctive relief is not always the best way to serve the goals of copyright law.
• The reproduction of multiple copies for classroom distribution serves as an explicit statutory exception.
• Parodies that loosely target an original work still fall under established legal analysis.
• Market substitution risk shifts the burden of establishing fair use and transformation onto the borrower.
• Satire involves assailing prevalent follies or vices through ridicule, irony, derision, or wit.

Satire has been defined as a work in which prevalent follies or vices are assailed with ridicule, or are attacked through irony, derision, or wit.

• The Copyright Act does not provide a blanket evidentiary preference for parodists over original creators, requiring case-by-case evaluation.
• Parody often shades into broader social satire, making rigid statutory presumptions unworkable.
• Courts must determine whether a parodic character may reasonably be perceived in the challenged work.
• Judges should not act as art critics or evaluate the aesthetic quality, taste, or worth of a parodic work.
• The Court of Appeals erred by giving virtually dispositive weight to the commercial nature of 2 Live Crew's parody and applying a presumption of unfairness.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits.

• Commercial use is only one element of the broader purpose and character inquiry under Section 107.
• Courts must assess the degree of the parodic element relative to the amount of copying involved.
• Congress deliberately avoided narrowing fair use through rigid presumptions or predefined categories.
• Neither educational use nor commercial character automatically guarantees or bars a finding of fairness.
• Treating commerciality as a presumption against fairness would invalidate most standard illustrative uses.

If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107...

• The Supreme Court emphasizes that commercial use is not automatically presumptively unfair, contrary to a rigid per se rule.
• Fair use requires a sensitive balancing of multiple interests and factors rather than relying on bright-line rules.
• The nature of the copyrighted work often provides limited help in parody cases because parodies almost invariably copy well-known expressive works.
• The extent of permissible copying under the third statutory factor varies depending on the purpose and character of the use.
• Seeking permission to use a copyrighted work and being denied does not weigh against a finding of fair use if the use is otherwise fair.

This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works….

• Derivative works that copy the heart of an original risk serving as superseding market substitutes.
• Parody inherently relies on recognizable allusions, often requiring the quotation of a work's most memorable features.
• The court found that 2 Live Crew's use of the original song's opening riff and first line was justified for parodic recognition.
• Context is critical in parody, as demonstrated by how 2 Live Crew departed significantly from the original lyrics and added distinct musical elements.
• While taking the heart of a work can be permissible for parody, the extent of musical copying must be weighed against transformative purpose and market harm.

Its art lies in the tension between a known original and its parodic twin.

• Market harm analysis evaluates both direct impacts on the original work and potential damage to the market for derivative works.
• As an affirmative defense, proving fair use requires favorable evidence regarding relevant market conditions.
• Unlike mere commercial duplication, transformative works like parodies do not automatically trigger presumptions of market harm.
• Because parodies serve different market functions than originals, they often avoid acting as market substitutes.
• Legitimate criticism and parody may destroy the commercial demand for an original work without constituting copyright infringement.

Because parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically, the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it.

• The law recognizes no protectible derivative market for critical works such as reviews or lampoons.
• Creators generally do not license criticism of their own productions, removing such uses from potential markets.
• While criticism markets are unprotected, derivative markets like rap music are proper focuses of inquiry for fair use.
• Harm to derivative markets only matters if it stems from market substitution rather than critical effectiveness.
• No evidence showed that 2 Live Crew's parody harmed any potential nonparody rap market for the original song.

The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

• Justice Kennedy's concurrence emphasizes that parody definitions must be kept within proper limits to protect copyright.
• Fair use is an affirmative defense, meaning doubts should not automatically favor self-proclaimed parodists.
• Allowing any weak musical transformation to qualify as a parody weakens copyright protection and reduces the incentive to create.
• The text provides the original lyrics of Roy Orbison's 'Oh, Pretty Woman' alongside 2 Live Crew's rap version for comparison.
• Following the Supreme Court's decision, the parties ultimately settled out of court with an agreement on proceeds.

Just the thought of a rap version of Beethoven’s Fifth Symphony or 'Achy Breaky Heart' is bound to make people smile.

• Discussion questions explore the balance between parodies and the rights of copyright owners regarding derivative works.
• Judge Pierre Leval's influential Harvard Law Review article established transformativeness as a core touchstone in fair use analysis.
• The text examines how courts determine whether a work qualifies as a parody through intent, reception, or other methods.
• In Annie Leibovitz v. Paramount Pictures, the photographer sued over a promotional poster that spoofed her iconic magazine cover.
• The court found Paramount's poster to be a protected parody because it added something new and commented on the original through ridicule.

A photographer posing a well known actress in a manner that calls to mind a well known painting must expect, or at least tolerate, a parodist’s deflating ridicule.

• The text examines the legal distinction between parody and satire in the context of copyright fair use.
• It highlights the case involving The Wind Done Gone, an alternative narrative critiquing the depiction of slavery in Gone with the Wind.
• The Eleventh Circuit classified The Wind Done Gone as a parody because it specifically targeted and critiqued the original work.
• Empirical research shows that outside of parody, courts rarely recognize fair use in musical copyright infringement cases.
• Litigants in the music industry often avoid fair use defenses to streamline settlements, royalties, and adherence to industry norms.

In an empirical study, Edward Lee finds that outside the context of parody, no court decision has recognized fair use of a plaintiff’s musical work in a defendant’s musical work.

• Market harm from criticism or parody is not considered a cognizable copyright violation under the fourth fair use factor.
• The distinction between transformative commentary and market usurpation is central to evaluating fair use.
• Following the Campbell decision, courts have broadened the application of transformativeness across various statutory factors and use types.
• Contemporary fair use cases are presented chronologically to help readers understand the evolving and context-specific nature of the law.
• The Bill Graham Archives v. Dorling Kindersley case introduces the unauthorized use of copyrighted concert posters within a historical coffee table book.

when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.

• DK initially sought permission from BGA to reproduce copyrighted Grateful Dead images in a book.
• Negotiations stalled because BGA demanded archival footage rights and the parties disagreed on license fees.
• Despite lacking a final license agreement, DK published Illustrated Trip using seven reduced-size concert poster images.
• BGA subsequently filed a copyright infringement lawsuit against DK after post-publication fee demands were refused.
• Both the district court and the appellate court ultimately concluded that DK's use of the images constituted protected fair use.

Nevertheless, DK proceeded with publication of Illustrated Trip without entering a license fee agreement with BGA.

• The first fair use factor evaluates whether a use is commercial or nonprofit, with the 'transformative' nature being most critical.
• The district court found DK's biographical use of concert posters on a timeline to be transformative and heavily favored fair use.
• Appellant argues that merely placing images on a timeline without artistic commentary fails to qualify as transformative use.
• The court rejects this narrow view, affirming that biographies inherently require source material for historic scholarship.
• DK utilized the promotional posters as historical artifacts rather than for their original expressive and promotional purposes.
• Using images to enhance biographical information and document concert events serves a distinct purpose from the original creation.

No less a recognition of biographical value is warranted in this case simply because the subject made a mark in pop culture rather than some other area of human endeavor.

• DK was not required to discuss the artistic merits of the images to satisfy the first factor of fair use.
• DK significantly reduced the size of the reproductions to use the minimal image size necessary for its transformative purpose.
• The expressive value of the images was minimized by combining them with timelines, text, and original artwork into a collage effect.
• The images constitute an inconsequential portion of the book, accounting for less than one-fifth of one percent of the total work.
• Illustrated Trip does not exploit the use of the images for commercial gain, as their use is incidental to the book's biographical value.
• The court concluded that the first fair use factor weighs in favor of DK due to the transformative nature and lack of commercial exploitation.

While the small size is sufficient to permit readers to recognize the historical significance of the posters, it is inadequate to offer more than a glimpse of their expressive value.

• The district court found that the creative nature of the images weighs against DK, though it limited this weight due to their extensive prior publication.
• Appellees argued that the mixed factual and creative nature of the long-published images actually tilts the second factor toward fair use.
• The appellate court agreed that creative images typically favor the copyright holder but noted this factor has limited usefulness for transformative purposes.
• Unlike cases where art is used for identical decorative purposes, DK used the images to enhance biographical information in a book.
• The court concluded that the second factor holds limited weight because the use emphasized the images' historical rather than creative value.

Here, we conclude that DK is using BGA’s images for the transformative purpose of enhancing the biographical information provided in Illustrated Trip.

• The court examined whether copying entire works precludes fair use, concluding that the extent of permissible copying depends on the purpose and character of the use.
• DK used reduced-size images of Grateful Dead posters and tickets strictly as historical artifacts to provide visual context.
• Because the images were minimized and intermingled with text, their artistic impact was limited and tailored to a transformative purpose.
• Consequently, the third fair use factor did not weigh against fair use despite the works being copied in their entirety.
• Regarding the fourth factor, the court noted that market harm cannot be assumed merely because a secondary user did not pay a licensing fee.

Neither our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use.

• Copyright owners cannot prevent fair use by simply establishing or licensing a market for transformative uses of their work.
• A publisher's willingness to pay licensing fees does not preclude them from asserting a fair use defense.
• Unlike transformative uses, derivative works that merely repackage original content to entertain fans often fail fair use tests.
• The Seinfeld Aptitude Test case illustrates that trivia books lacking critical or educational purpose substitute for legitimate derivative markets.
• Courts distinguish between protected transformative markets and traditional or derivative markets susceptible to copyright infringement.

The SAT’s plain purpose, therefore, is not to expose Seinfeld’s 'nothingness,' but to satiate Seinfeld fans’ passion for the 'nothingness' that Seinfeld has elevated into the realm of protectable creative expression.

• The district court initially determined that Google's use of thumbnail images did not constitute fair use.
• Google's search engine transforms original images into functional pointers, directing users to sources of information.
• This use is arguably more transformative than a parody because it provides an entirely new function rather than just a new context.
• Incorporating the entire image does not diminish this transformative nature since the copy serves a fundamentally different purpose.
• Courts must weigh transformative public benefits against commercial and superseding uses when evaluating fair use.
• The court noted that potential superseding uses and commercial dimensions were not significant enough to outweigh public value at the time.

Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

• The court concluded that Google's use of thumbnail images is significantly transformative and serves a major public benefit.
• Transformative use outweighs commercialism, making this factor weigh heavily in favor of Google.
• Because Perfect 10's images were already published on the internet, they are not entitled to enhanced protection for unpublished works.
• Copying entire photographic images was deemed reasonable and necessary for the functional purpose of a visual search engine.
• Potential market harm to cell phone downloads remained hypothetical and did not strongly favor either party.
• Weighing all four factors together, the court evaluated fair use flexibly in light of new technological circumstances.

We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case.

• Google's use of thumbnail images was deemed a transformative fair use that provides a significant benefit to the public.
• The Napster case established that direct economic benefit is not required to demonstrate a commercial use under copyright law.
• Repeated and exploitative copying to avoid purchasing authorized copies can constitute a commercial use even without sales.
• A copyright infringement dispute arose when a gossip magazine published stolen, unpublished photos of a celebrity wedding.
• The Ninth Circuit held that newsworthy interest alone does not automatically outweigh the fair use factors in copyright analysis.

This appeal reads like a telenovela, a Spanish soap opera.

• Pop singer Monge and Reynoso married in strict secrecy in 2007, intending to keep the photos entirely private.
• A memory chip containing the wedding photos was found in a borrowed vehicle and exploited for extortion.
• After the extortion failed, the memory chip was sold to a magazine publisher without the couple's consent.
• The couple's families learned of the marriage only after the tabloid published the stolen private photos.
• The magazine splashed the exclusive wedding images across its cover and a prominent two-page spread.

Intent on secrecy, Reynoso denied the marriage to his own mother, but to no avail: She had already seen the wedding photos in a gossip magazine.

• Maya published only a small fraction of the images obtained from Viqueira without providing supporting evidence like a marriage certificate.
• The couple registered copyrights for five of the published photos and subsequently filed a copyright infringement complaint against Maya.
• The district court granted Maya's motion for summary judgment based on the legal doctrine of fair use.
• The first fair use factor involves three competing principles: news reporting, transformation, and commercial use.
• While the magazine's coverage qualifies as news reporting, this status alone is insufficient to guarantee a fair use defense.

The promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use 'news report' of the [work].

• Merely rebroadcasting newsworthy videos or adding minor changes like voice-overs does not automatically qualify as transformative fair use.
• Arranging copyrighted images into a photo montage can be sufficiently transformative when incorporated into new material.
• Publishing photographic evidence of a newsworthy event, even with minor cropping or captions, fails to transform the original works.
• A transformative claim relies on using prior elements to create a new composition that partly comments on the original work.
• Fair use analysis evaluates whether a party acted in good faith, though disputes over copyright ownership do not automatically foreclose the defense.

Campbell makes clear that the “heart” of a claim for transformative use is “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”

• Maya argues that publishing wedding photos as an expose transformed their original purpose into newsworthy evidence.
• The court distinguishes this case from Núñez, where the copyrighted images themselves were the central subject of the public controversy.
• Copyright law allows the free use of factual information, meaning Maya could report the marriage without needing to bodily appropriate the actual photos.
• The court emphasizes that there is no general newsworthiness exception that automatically creates legal transformation.
• A mere difference in purpose between the copyright holder and the infringer does not inherently alter the work with new expression or meaning.

We reiterate what the First Circuit emphasized, namely that there is no general newsworthiness exception.

• The court found no evidence that the couple made affirmative representations or public denials regarding their secret marital status.
• News reporters covering published stories involving controversies may have stronger claims of transformation under fair use.
• Maya utilized wholesale copying of images with minimal written commentary, rendering the use at best minimally transformative.
• Maya's publication is undisputedly commercial and profit-driven, lacking any educational pretense.
• Every commercial use of copyrighted material is presumptively an unfair exploitation, which weighs against a finding of fair use.
• Newsworthiness and public interest alone are insufficient to establish fair use when weighed against commercial exploitation.

The Supreme Court has stated that “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.”

• The second factor of fair use examines whether a work is creative and whether it remains unpublished.
• Photographs are generally considered creative expressions rather than purely factual records, even when they document historical events.
• The unpublished status of a work is a critical element and a key factor that tends to negate a fair use defense.
• Maya's publication of the images supplanted the plaintiffs' right to control the first public appearance of their photographs.
• Because the circumstances were not extraordinary, the unpublished nature of the photos outweighed Maya's fair use claim.

Simply because a photo documents an event does not turn a pictorial representation into a factual recitation of the nature referenced in Harper & Row.

• Maya published 100 percent of the copyrighted wedding photos with minimal cropping, capturing the heart of each image.
• The court found that Maya used far more copyrighted material than necessary for its news-gathering purpose.
• Both the quantitative and qualitative aspects of the published material weigh heavily against fair use.
• The district court erred in concluding that the lack of present intent to sell photos destroyed the potential market.
• Potential market under section 107 includes future and derivative markets, independent of the author's current intentions.
• Evidence confirmed an actual market for the couple's images, which was harmed by Maya's unauthorized publication.

Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the 'potential market' and, second, because he has the right to change his mind.

• Monge and Reynoso retained the right to control the future release and commercialization of their unpublished photos.
• The fact that a work is confidential and unpublished actually strengthens copyright protection and negates fair use defenses.
• Maya's unauthorized publication completely usurped and severely diminished the couple's potential market for first publication.
• Widespread reproduction of Maya's actions would undermine celebrities' ability to market their own images and incentivize intellectual property piracy.
• Maya failed to transform the images, acting instead as a direct market replacement that caused cognizable harm to the originals.

Although the photos were unpublished until Maya printed them for commercial gain, after the publication of Issue 633, the bottom literally dropped out of the market—neither Maya nor anybody else is likely to purchase these pictures from the couple.

• Market harm is demonstrated when commercial use amounts to the wholesale duplication of unpublished works.
• Maya's complete copying of the wedding photos negatively affected both actual and potential markets.
• Invoking news reporting does not automatically exempt a commercial entity from copyright infringement.
• The minimal transformation achieved by Maya was heavily outweighed by its commercial use and the unpublished nature of the photos.
• Without a single fair use factor in its favor, Maya failed to meet its legal burden, making summary judgment for the couple appropriate.

Simply because the works were yet unpublished did not give Maya a license to pull the trigger and blow the couple’s cover.

• Copyright is not an absolute right of control but was created to promote progress in science and the arts.
• The fair use doctrine serves as a counterbalance to prevent copyright laws from stifling creativity.
• Allowing public figures to weaponize copyright against the press undermines free speech and public interest.
• Photographic evidence used to prove controversial or newsworthy facts can weigh in favor of fair use.
• Transformative use of images through editing and commentary should outweigh traditional commercial concerns.

Under the majority’s analysis, public figures could invoke copyright protection to prevent the media’s disclosure of any embarrassing or incriminating works by claiming that such images were intended only for private use.

• TVNotas exclusively published previously unseen photos of singer Noelia and Jorge Reynoso from their rumored January 2007 Las Vegas wedding.
• The published photo montage included images of the ceremony with the minister, their first kiss, a celebratory bar visit, and a pose in the nuptial suite.
• Despite the couple's persistent refusals to confirm their marriage, the magazine argued that the explicit photographic evidence spoke for itself.
• Maya utilized these photos not just for republication, but as documentary evidence within an exposé.
• Maya's specific commentary, editing, and arrangement of the images contributed to a transformative use that changed their original character.

Maya used the images as documentary evidence…. [A] photo montage, with accompanying commentary, may constitute a transformative use.

• The majority opinion incorrectly equates the original subject matter of the wedding photographs with their intended subsequent use.
• The couple kept their marriage secret purely for commercial marketing purposes to preserve the single persona of singer Noelia.
• Maya utilized the photographs as direct documentary evidence to expose a long-hidden wedding and counter the couple's public representations.
• Media speculation about the secret marriage had circulated years prior to the publication of the 2009 TVNotas exposé.
• The exposé served an objective entirely contrary to the couple's original intent of both recording and concealing the event.
• The fundamentally divergent purpose of Maya's publication strongly supports a finding of legal transformativeness under fair use.

For the Couple, these were personal images, originally taken to capture the night of their marriage.

• The majority opinion misapplies Harper & Row by ignoring critical factual distinctions regarding commercial preemption and pre-existing concealment.
• Unlike the unauthorized scoop of Gerald Ford's memoir, Maya's use of the wedding photos was transformative because it exposed a deeply hidden covert marriage.
• Denying fair use to private works that become newsworthy creates an untenable precedent that would suppress the publication of celebrity scandals like those involving Tiger Woods or Anthony Weiner.
• The majority's logic improperly positions the courts as arbiters of what constitutes a legitimately newsworthy controversy, threatening the freedom of the press.
• Because news stories are multi-faceted and evolve over time, a mere marriage certificate was insufficient to prove the full truth of the couple's deception.
• The wedding photographs themselves were integral to revealing the actual events, venue, and extent of the secret Vegas nuptials.

If public, newsworthy figures were permitted to invoke a “private use” exception, Tiger Woods, for example, could have claimed copyright in his sexting messages and, without fair use, the media would have no right to quote them.

• Sending private messages or sexts to a specific recipient does not legally constitute public distribution under the Copyright Act.
• A fundamentally different purpose in publishing photos can constitute a transformative use that favors fair use.
• The nature of a copyrighted work distinguishes between creative works and factual works, with factual works receiving less protection.
• Unpublished works generally receive greater copyright protection, but this factor holds less significance when the use is transformative.
• Photographic documentation of events like weddings is considered factual and informative rather than highly artistic, placing it outside the core of copyright protection.

Merely sending suggestive self-portraits or “sexts” to another, private person does not launch a work into the public domain.

• Excerpts used to tell an independent narrative require evaluating the selection and proportion against the whole work.
• Purchasing a compilation disk allows a publisher to cull specific images to tell a distinct story, such as a secret wedding exposé.
• Restraint in selecting only a few necessary images out of a larger collection can support a finding of fair use.
• Certain photos depicting the actual wedding ceremony were necessary for the narrative, whereas others at a bar or bed were not.
• Unauthorized publication claims must account for market failure exceptions where authors conceal works to withhold information.

The majority's analysis lacks any basis in law or fact.

• Copyright owners representing the public interest typically refuse licenses to prevent market substitution.
• Market failure should only be found when an owner's refusal stems from a desire to conceal information rather than promote copyright goals.
• The couple intended to conceal their Las Vegas wedding to preserve a personal image rather than protect traditional market interests.
• Overprotecting intellectual property threatens the vibrant public domain necessary for ongoing creativity and a free press.
• The dissenting opinion argues that extending protection to control celebrity images undermines fair use.

Overprotecting intellectual property is as harmful as underprotecting it.

• Major academic publishers alleged that Georgia State University officials and regents infringed copyrights by providing students with digital excerpts without payment.
• Out of seventy-four alleged instances of infringement, the District Court found most were protected by the fair use defense or lacked a prima facie case.
• The appellate court reversed the District Court's judgment because its fair use analysis was partially erroneous.
• Technological advances have created a tension between efficient digital delivery and defining appropriate boundaries for copyright protection.
• Copyright law must balance providing economic incentives for creators with allowing unpaid uses so future authors can build upon existing ideas.

Some unpaid use of copyrighted materials must be allowed in order to prevent copyright from functioning as a straightjacket that stifles the very creative activity it seeks to foster.

• Universities increasingly distribute digital excerpts of scholarly works to students over the internet under the doctrine of fair use.
• The plaintiffs publish advanced scholarly books and monographs aimed at niche academic markets and targeted at professors.
• Historically, professors assigned readings through library reserves or physical coursepacks assembled by third-party copy shops.
• Georgia State University largely replaced paper coursepacks with internal digital systems like ERes and uLearn.
• A well-established licensing system exists through organizations like the Copyright Clearance Center to grant permissions for excerpt reproduction.

In recent years, however, universities—following the trend with regard to distribution of many forms of media the world over—have increasingly abandoned paper coursepacks in favor of digital distribution of excerpts over the Internet.

• CCC offers various permissions services including the Academic Permissions Service and electronic course content services for licensing excerpts.
• Participation in services like ARLS varies among publishers, with some like Sage participating while others do not.
• GSU bookstore pays permissions fees for physical coursepacks, highlighting the contrast with digital distribution.
• The central legal issue revolves around when GSU must pay permissions fees for posting digital excerpts to electronic reserve systems.
• Plaintiffs allege widespread copyright infringement by GSU professors through unpermissioned digital postings.
• Defendants defend their actions under the doctrine of fair use for nonprofit educational and research purposes.

The central issue in this case is under what circumstances GSU must pay permissions fees to post a digital copy of an excerpt of Plaintiffs’ works to ERes or uLearn….

• Georgia State University introduced a new copyright policy in 2009 requiring professors to assess fair use before posting excerpts.
• Professors must complete a Fair Use Checklist, tallying factors that weigh for or against fair use.
• If fair use factors outnumber opposing factors, instructors can post the material without seeking permission from rights holders.
• The District Court later examined seventy-four instances, finding copyright infringement in only five of them.
• The court ruled that the nonprofit educational purpose and the informational nature of the works strongly favored the defendants.

The District Court issued an order holding that Defendants had infringed Plaintiffs’ copyright in five of the seventy-four instances at issue....

• The District Court evaluated whether GSU professor-selected excerpts served legitimate educational purposes.
• A quantitative limit was established, permitting unpaid copying of up to 10 percent of a book or one complete chapter.
• The court examined the fourth fair use factor concerning the effect of the use on the potential market and licensing revenues.
• Unpaid copying heavily favored plaintiffs when digital permissions were readily available at a reasonable price.
• The court noted that academic authors publish primarily for reputation rather than royalties, minimizing the impact on creation.

There is no reason to believe that allowing unpaid, nonprofit academic use of small excerpts in controlled circumstances would diminish creation of academic works.

• The District Court applied fair use whenever at least three of the four statutory factors favored the Defendants.
• Factor three evaluated the amount of copying, favoring Defendants when excerpts fell within a 10 percent-or-one-chapter limit.
• Factor four assessed market impact, often favoring Defendants due to a lack of evidence regarding digital licensing availability.
• Out of forty-eight alleged infringement instances, the District Court found fair use applicable in forty-three cases.
• Plaintiffs appealed the decision, arguing that the District Court's mechanical approach to weighing fair use factors was legally flawed.
• The appellate court agreed that the District Court's arithmetic approach to balancing the factors was improper.

Plaintiffs argue that the District Court’s application of the fair use factors was legally flawed, and that the District Court consequently erred in finding that the fair use defense applied in forty-three of the forty-eight remaining instances of alleged infringement.

• Fair use determinations weigh multiple results together.
• Evaluations are conducted in light of copyright purposes.
• Specific factors vary in importance depending on the context.
• Each factor helps determine if a particular use is fair.

a given factor may be more or less important in determining whether a particular use should be considered fair under the

• The court found that the District Court erred by treating the four fair use factors as a simple mathematical formula with equal weight.
• Plaintiffs compared the case to prior coursepack cases like Basic Books and Princeton University Press, where commercial copyshops failed to establish fair use.
• Plaintiffs argued that distributing course readings electronically rather than on paper should not alter the fundamental fair use calculus.
• The court noted that fair use is highly fact-specific, meaning past coursepack cases offer guidance but do not dictate the outcome.
• Defendants' use was deemed not transformative because the digital excerpts were verbatim copies serving the exact same intrinsic purpose as the originals.

if you make verbatim copies of 95 pages of a 316-page book, you have not transformed the 95 pages very much—even if you juxtapose them to excerpts from other works.

• Nonprofit educational uses can support a finding of fair use under the first statutory factor.
• This protection can apply even when the reproduction is considered nontransformative in nature.
• Supreme Court precedent in Campbell v. Acuff-Rose Music explicitly notes this statutory exception.
• The exception specifically contemplates the straight reproduction of multiple copies for classroom distribution.

The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.

• Educational fair use furthers copyright goals by giving teachers and students lawful access to works while balancing incentives for authors.
• Commercial copyshops in past cases could not claim nonprofit educational status just because their customers were students and professors.
• Courts distinguish between the institutional status of a user and the actual nature of the specific use itself.
• The crux of the profit distinction involves whether a user exploits copyrighted material without paying the customary price.
• Defining indirect savings on licensing fees as commercial profit is circular because it would eliminate all nonprofit fair use.

However, this reasoning is somewhat circular, and hence of limited usefulness to our fair use inquiry.

• Defendants do not capture significant revenues directly from copying Plaintiffs' works.
• The disputed use serves a broader public benefit by furthering education.
• The context involves educational activities at a public university.
• These factors are central to the legal analysis of Chapter VI regarding fair use.

At the same time, the use provides a broader public benefit—furthering the education of students at a public university.

• Defendants' use of plaintiffs' works qualifies as a nonprofit educational purpose favored by copyright law.
• Congressional intent and legislative history highlight the special status granted to classroom and educational copying.
• Despite the educational purpose, the nontransformative nature of the use creates a significant threat of market substitution.
• The district court erred in treating the second fair use factor as universally favoring fair use for informational and educational excerpts.
• Wholesale copying of expressive content, rather than bare facts, means the second factor should have been neutral or weighed against fair use in certain instances.
• The district court improperly relied on a rigid 10 percent-or-one-chapter benchmark for the third factor instead of conducting a case-by-case analysis.

The fair use analysis must be performed on a case-by-case/work-by-work basis.

• The court rejected the District Court's 10 percent-or-one-chapter safe harbor approach for evaluating alleged copyright infringement.
• Fair use analysis requires evaluating each instance of copying individually, considering quantity, quality, and the heart of the work.
• The District Court correctly found that small excerpt usage did not cause market substitution or harm actual book sales.
• While academic permission markets exist, the mere presence of licensing programs does not automatically mandate payment.
• If a copyright holder does not provide a license for a specific digital excerpt, the fourth fair use factor generally favors fair use.

In other words, the fact that Plaintiffs have made paying easier does not automatically dictate a right to payment….

• Publishers determine a work's value based on anticipated market demand, which drives upfront payments and distribution efforts.
• The absence of digital permissions for certain works implies publishers perceived little to no demand in that specific market.
• If the market for digital excerpts is deemed zero or de minimis, unauthorized use is unlikely to cause significant market harm.
• The District Court carefully reviewed evidence regarding license availability for forty-eight works under the fourth factor of fair use.
• Where digital excerpt licenses were available, the court found potential damage; where unavailable, it weighed in favor of fair use.
• The appellate court ultimately reversed the District Court's judgment and remanded the case for further proceedings.

This tells us that Plaintiffs likely anticipated that there would be little to no demand for digital excerpts of the excluded works and thus saw the value of that market as de minimis or zero.

• The district court initially applied a rigid mathematical formula to fair use factors before the Eleventh Circuit demanded a holistic review.
• Following remand, the district court ultimately found most of the infringement claims to be protected under fair use.
• Legal analysis questions whether fair use should distinguish between materials created specifically for education versus those merely used in education.
• The role of transformativeness in educational fair use remains a subject of ongoing legal debate and scholarly discussion.
• The fourth statutory factor requires courts to evaluate the market effects of using copyrighted work without a license.
• Courts must carefully assess whether a potential licensing market is one that creators would realistically develop, avoiding circular reasoning regarding lost licensing fees.

The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.

• The Second Circuit held that Texaco researcher photocopies of journal articles were not protected by fair use.
• The court reasoned that the fourth fair use factor favored copyright holders due to the existence of a workable licensing market through the Copyright Clearance Center.
• The majority asserted that an unauthorized use becomes less fair when a ready means to pay for licensing exists.
• Judge Jacobs dissented, arguing that the majority's logic suffered from circular reasoning regarding market existence.
• Judge Jacobs contended that the market would not crystallize unless courts rejected fair use, meaning no true traditional market yet existed.

There is a circularity to the problem: the market will not crystallize unless courts reject the fair use argument that Texaco presents; but, under the statutory test, we cannot declare a use to be an infringement unless there is a market to be harmed.

• Copyright owners cannot preempt fair use markets by developing or licensing transformative uses like parody or criticism.
• Scholar James Gibson notes that risk aversion leads copyright users to seek unnecessary licenses.
• Unneeded licensing feeds back into doctrine, causing a steady, unintended expansion of copyright over time.
• Google's Library Project involves scanning millions of library books to create a searchable digital index.
• The Google Books search engine allows users to search terms and see snippet occurrences across millions of volumes.

The result is a steady, incremental, and unintended expansion of copyright, caused by nothing more than ambiguous doctrine and prudent behavior on the part of copyright users.

• Google Books provides rudimentary bibliographic information, frequency lists, and links to purchase or locate books in libraries.
• The search tool allows researchers to instantly find books containing specific terms across millions of volumes without displaying ads or receiving affiliate payments.
• Advanced research methods like text and data mining are enabled through tools such as ngrams, which track word frequency and linguistic shifts over centuries.
• Users can view a maximum of three limited horizontal segments called snippets per page, each comprising about an eighth of a page.
• Google implements strict limitations on snippet visibility, including fixed displays for repeated terms and permanent blacklisting of certain pages and snippets.

This tool permits users to discern fluctuations of interest in a particular subject over time and space by showing increases and decreases in the frequency of reference and usage in different periods and different linguistic regions.

• Google disables snippet views for reference books like dictionaries and cookbooks where a single snippet satisfies user needs.
• Rights holders can exclude their books entirely from the snippet view by submitting an online form.
• Authors filed a class action lawsuit against Google in September 2005 over copyright infringement.
• A proposed class-wide settlement was rejected by the district court in 2011 for being unfair to class members.
• The district court eventually granted summary judgment to Google in 2013, ruling that its book scanning program constituted a fair use.