16A works not eligible for copyright: ideas
About This Page
This page contains the following subsections:
16A.1 — works not eligible for copyright: ideas and phrases (go there)
16A.2 — works not eligible for copyright: ideas and titles (go there)
16A.3 — works not eligible for copyright: titles (go there)
16A.4 — works not eligible for copyright: methods (go there)
16A.5 — works not eligible for copyright: systems (go there)
16A.6 — copyright not available for items that should be patented (go there)
16A.7 — effort is not copyrightable (go there)
16A.7a — eligibility for copyright (go there)
16A.8 — eligibility expires if unpublished too long (go there)
Where to Look in the Law
1909 Act: Not mentioned
1947 Act: Not mentioned
1976 Act: §102(b)
CFR: § 202.1 Material not subject to copyright.
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (1976 Act, §102(b))
Copyright Office Publications for Laymen
Circular 31 “Ideas, Methods, or Systems”
Circular 32 “Blank Forms and Other Works Not Protected by Copyright”
Circular 34 “Names, Titles, Short Phrases not Copyrightable”
“Ideas, Methods, or Systems are not subject to copyright protection. Copyright protection, therefore, is not available for: ideas or procedures for doing, making, or building things; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas, algorithms; or any other concept, process, or method of operation.
“Section 102 of the copyright law, title 17, United States Code, clearly expresses this principle: ‘In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.’” (Information Circular 31)
“The general idea or concept for a [dramatic] program is not copyrightable.” (Fact sheet FL119)
What the Courts Ruled
Boucicault vs Fox
C.C.N.Y. (Oct term 1862) ¤ Fed.Cas.No.1,691
“Many of the plays of Shakespeare are framed out of materials which existed long before his time, and were gathered by him from ancient chronicles, and other dusty receptacles of antiquated literature. But these dry bones of the past the poet combined anew, pouring over them the effulgence of his own genius, until they quickened with a new life and adorned with a hitherto unknown beauty.”
Ossip Dymow vs Guy Bolton, et al.
C.C.A.N.Y. (4-5-1926) ¤ 11 F.2d 690
Dymov wrote a play called “Personality,” in the Russian language, about Jewish society in the cloak and suit industry. He had Bolton assist in translation to English. Bolton subsequently wrote a play called “Polly Preferred,” set in the theatrical, movie and financial industries (without a Jewish social or business background). Dymov contended that Bolton infringed his theme, though the only similarity is that “an ambitious girl of at least potential charm” is helped by “an ingenious young man, in financial straights” and both attain their ambition. The court recognized an “incomplete skeleton” in common but beyond “a few bones” there isn’t similarity of “flesh and blood, the incident, yet essential, adornment and trimming.”
“[C]opyright law protects the means of expressing an idea… . [I]f the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist.”
Becker vs Loew’s, Inc.
C.C.A. Ill. (2-20-1943) ¤ 133 F.2d 889, certiorari denied 63 S.Ct. 1438, 319 U.S. 772, 87 L.Ed. 1720, rehearing denied 64 S.Ct. 30, 320 U.S. 811, 88 L.Ed. 490
A plotless 1936 book which sold fewer than 700 copies (hardly any past mid-1937) had the same title as a 1940 MGM movie: We Who Are Young. The book was (in the words of its author, Harry Becker) a “discourse and discussion of economic and social problems of the present day.” The movie was written by Dalton Trumbo (whose own, different title had been changed by an MGM employee), “who had no knowledge of plaintiff’s book or its contents, … basing [his screenplay] on his own experiences and those of his friends who were attempting to solve the problem of getting married on a small salary.” “Whitbeck [the aforementioned MGM employee] testified that he had never heard of the plaintiff’s book until after he had suggested the title”. The Court ruled that “plaintiff’s book could not dramatized without being rewritten so thoroughly as to make it another book.”
The critical point: “Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put into shape.”
MacDonald vs Du Maurier et al (including Doubleday & Company)
C.C.A.N.Y. (8-18-1944) ¤ 144 F.2d 696.
D.C.,S.D.N.Y. (1-14-1948) ¤ 75 F.Supp. 655, 76 USPQ 290
Edwina Lewin MacDonald wrote a magazine article (fiction) titled “I Planned to Murder My Husband,” then enlarged it to a book called Blind Windows. Thereafter, Daphne du Maurier published her novel Rebecca. (It was adapted by producer David O. Selznick and director Alfred Hitchcock into a classic movie that won the Academy Award for Best Picture of 1940.) MacDonald sued, contending that the much-more-popular du Maurier novel infringed on hers. The 1944 Court recognized that all three works are “told in autobiographical style by the second wife”, and have a few more similarities, but many differences. In rejecting MacDonald’s claim, the judge wrote: “Ideas or basic plots are not protected by copyright. Neither are isolated incidents, nor even groups of incidents following necessarily or naturally from the plot or environment. Such incidents, however, may be selected, arranged and stated in such manner as to constitute the author’s expression of his plot or part thereof, and if so, that arrangement and mode of expression is protected by copyright.”
Cases Summarized in Other Sections |
| Sterner vs Hearst Corporation, et al (launch this) ruled that ideas which have not been put into“words and ideas are in public domain and have not been put into unique concrete form”. Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc., A.G., Filmverhuurkantoor De Dam B.V., and rbc Films vs Columbia Broadcasting System, Inc. (launch this) ruled against an argument made by CBS that a compilation of scenes of Charlie Chaplin films had not put its idea in tangible form. |
Other Information
From the Code of Federal Regulations, Title 37, § 202.1 Material not subject to copyright.
“The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:
“(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents;
“(b) Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;
“(c) Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;
“(d) Works consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.
“(e) Typeface as typeface.
“[24 FR 4956, June 18, 1959, as amended at 38 FR 3045, Feb. 1, 1973; 57 FR 6202, Feb. 21, 1992]”
16A.1 works not eligible for copyright: ideas and phrases
Copyright Office Layman Publications to Read
“Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright.” (Information Circular 34)
What the Courts Ruled
Charles Francis Park vs Warner Bros., et al.
D.C.,S.D.N.Y. (8-23-1934) ¤ 8 F.Supp. 37
Park contended that his copyrighted song, which was part of his unpublished work copyrighted June 9, 1931, was infringed by a song within a Warner Bros. film. Al Dubin, who had written the song which appeared in the Warner Bros.’ film Twenty Million Sweethearts (1934), denied having access to Park’s song, and said he got his idea from the play Strictly Dishonorable, which he saw prior to 1931, when Park’s song was written. Dubin’s song was written January 15, 1934. Both songs repeatedly use the phrase “What are your intentions?” (a catchphrase at the time). “The treatment of the idea involved in the two songs is different, and there is no copying of anything which was protected by the plaintiff’s copyright.” (The song, unnamed in the decision, is not unexpectedly titled “What Are Your Intentions?” and was credited to the songwriting team of Al Dubin (lyrics) and Harry Warren (music). The original publisher was M Witmark & Sons.)
The broad principle here is: “Neither ideas nor phrases nor ordinary English idioms or words are protected by copyright.”
 | Advertisement placed by Universal Pictures for its 1931 movie version of the play Strictly Dishonorable. This advertisement appeared in a movie industry trade paper in February 1932. The phrase “What are your intentions?” had evidently been so catchy that it was used in ads for the film version — soon enough after Park wrote his song that the phrase obvious existed prior to Park’s song — and long enough before Dubin wrote his song that Dubin could have been exposed to the phrase from any of a number of sources. |
Cases Summarized in Other Sections |
| Warner Bros., Inc., Film Export, A.G., and DC Comics, Inc. vs American Broadcasting Companies, Inc., and Stephen J. Cannell Productions (launch this) had the rights-holders to Superman suing a TV network over a series which mocked such familiar lines as “Look!… Up in the sky!… It’s a bird!… It’s a plane!… It’s Superman!” |
16A.2 works not eligible for copyright: ideas and titles
What the Courts Ruled
Tamas vs Twentieth Century-Fox Film Corporation
NY Supreme Court (2-10-1941) ¤ 48 USPQ 573
A lawsuit over alleged plagiarism turned out to show that only the title and basic idea were similar.
“A most critical comparison of the English translation of the plaintiff’s story written in the Hungarian language and the cinema theme used by the defendant divulges the only similarity to be in the title and their appropriateness as a medium for the current child favorite of the screen, Shirley Temple.
“It needs no argument or citation of authority to establish public or common right to use the word ‘Stowaway’ as a title or the idea or thought covered by the words as the subject matter of a novel, stage play or screen portrayal. To stowaway, meaning to conceal on ship, train or aeroplane so as to obtain free passage or to escape from pursuers, is no new idea, and when different authors use it as their general basis principle there must be some similarity.
“However, accidental similarity is not actionable plagiarism…”
“[T]he failure of plaintiff to secure copyright protection in the United States is conclusive evidence of his abandonment of his common-law rights, and makes his story public property in this country, even though he had obtained a copyright in Yugoslavia.”
16A.3 works not eligible for copyright: titles
Copyright Office Layman Publications to Read
“The title of a [dramatic] program or series of programs cannot be copyrighted”. (Fact sheet FL119)
What the Courts Ruled
Lone Ranger vs O. C. Cox, doing business as Wallace Brothers Circus, and Allen King
D.C.,W.D.S.C. (6-26-1941) ¤ 39 F. Supp. 487, reversed on other grounds 124 F.2d 650
Lee Powell, who played the Lone Ranger in the 1938 Republic serial movie, made circus appearances advertised by a picture of him on a white horse and the words “Lee Powell, the Original Lone Ranger of Talking Pictures.” The phrase “Hi-Yo Silver” (a yell given by the Lone Ranger) was printed on the poster.
Powell was charged with misrepresentation in holding out himself as the original Lone Ranger, yet given how the poster specifically delimited this claim to “talking pictures”, the court held that “This was nothing more than the truth.”
“The title to the copyrighted work may be used by others even to the extent of applying it to similar works of art or literature so long as the author’s expression of his idea is not copied or paraphrased.”
Becker vs Loew’s, Inc.
C.C.A. Ill. (2-20-1943) ¤ 133 F.2d 889, certiorari denied 63 S.Ct. 1438, 319 U.S. 772, 87 L.Ed. 1720, rehearing denied 64 S.Ct. 30, 320 U.S. 811, 88 L.Ed. 490
A plotless 1936 book which sold fewer than 700 copies (hardly any past mid-1937) had the same title as a 1940 MGM movie: We Who Are Young. The book was (in the words of its author, Harry Becker) a “discourse and discussion of economic and social problems of the present day.” The movie was written by Dalton Trumbo (whose own, different title had been changed by an MGM employee), “who had no knowledge of plaintiff’s book or its contents, … basing [his screenplay] on his own experiences and those of his friends who were attempting to solve the problem of getting married on a small salary.” “Whitbeck [the aforementioned MGM employee] testified that he had never heard of the plaintiff’s book until after he had suggested the title”. The Court ruled that “plaintiff’s book could not dramatized without being rewritten so thoroughly as to make it another book.”
The critical point: “Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put into shape.”
Isabel Manning Hewson Kirkland vs NBC
USDC, E.D. Penn (12-17-1976) ¤ 425 F.Supp. 1111
In 1933, Kirkland originated a story called “Land of the Lost” which became a radio program broadcast from 1943 to 1948. Children listeners formed “Land of the Lost” clubs, but the last disbanded by January 1954.
NBC started a new children’s television program called Land of the Lost (unrelated but for the title) in September 1974. Kirkland thought her rights to the title had been infringed. The Judge ruled that “a copyright in literary material does not secure any right in title itself”. Any secondary meaning attained by the title had been abandoned by her doing nothing for more than 20 years since the last commercial use by Kirkland. There was no “likelihood of confusion” between the programs of NBC and Kirkland. Whatever her previous success, “her extended non-use has resulted in a loss of rights to the title”.
16A.4 works not eligible for copyright: methods
What the Supreme Court Ruled
Perris vs Hexamer
99 U.S. 674 (2-3-1879)
William Perris, civil engineer and surveyor, produced maps of the city of New York, surveyed under the direction of insurance companies, which “exhibit each lot and building, and the classes as shown by the different coloring and characters set forth in the reference.” The maps were marked with signs, explained by a reference or key, so that an insurer could see at a glance what were the general characteristics of the different buildings and information needed when taking risks. Defendant Hexamer published a similar series of maps of Philadelphia, at first using substantially the same system of coloring and signs.
Perris cried infringement, but the Supreme Court saw no infringement of Perris’s maps by Hexamer’s. “They are arranged substantially on the same plan, but those of the defendant represent Philadelphia, while those of the complainants represent New York. They are not only not copies of each other, but they do not convey the same information.
“The complainants have no more an exclusive right to use the form of the characters they employ to express their ideas upon the face of the map, than they have to use the form of type they select to print the key. Scarcely any map is published on which certain arbitrary signs, explained by a key printed at some convenient place for reference, are not used to designate objects of special interest, such as rivers, railroads, boundaries, cities, towns, &c.[etc.]; and yet we think it has never been supposed that a simple copyright of the map gave the publisher an exclusive right to the use upon other maps of the particular signs and key which he saw fit to adopt for the purposes of his delineations.”
Baker vs Selden
101 U.S. 99 (1-19-1880) ¤ 25 L. Ed. 841
“Charles Selden… in the year 1859 took the requisite steps for obtaining the copyright of a book, entitled Selden’s Condensed Ledger, or Book-keeping Simplified, the object of which was to exhibit and explain a peculiar system of book-keeping. In 1860 and 1861, he took the copyright of several other books, containing additions to and improvements upon the said system. The bill of complaint was filed against the defendant, Baker, for an alleged infringement of these copyrights. The latter, in his answer, … contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.”
“The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of book-keeping referred to, to which are annexed certain forms or blanks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book. The defendant uses a similar plan so far as results are concerned; but makes a different arrangement of the columns, and uses different headings. If the complainant’s testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant’s book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, an author has the right to express the one, or explain and use the other, in his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of Selden’s book, regarding the latter merely as an explanatory work; or that he has infringed Selden’s right in any way, unless the latter became entitled to an exclusive right in the system.
The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden’s books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he has appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings, given to illustrate the system, are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is, whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained?”
“[T]here is a clear distinction between the book, as such, and the art which it is intended to illustrate… . A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, — would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter.”
“The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. 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… . The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public.”
“The conclusion to which we have come is, that blank accountbooks are not the subject of copyright; and that the mere copyright of Selden’s book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.”
What the Lower Courts Ruled
Isidor Joseph Muller vs Triborough Bridge Authority
D.C.N.Y. (1-15-1942) ¤ 43 F.Supp. 208
Muller had created an unpublished work called “Bridge Approach — The drawing shows a novel bridge approach to unsnarl traffic congestion,” copyrighted December 10, 1929. The allegedly infringing work was a bridge on Long Island which “crosses part of Jamaica Bay from Broad Channel to Rockaway Beach”. The formal name for the work actually created was “Approach to Cross Parkway Bridge”. Its description: “A system of ramps, viaducts, loops and traffic lanes… so that all lanes of traffic can move without crossing or being interrupted by other lines of traffic at that point.”
Engineers used as their source of inspiration the traffic separators at Wantagh, Long Island, prepared in 1928 or early 1929. This was prior to the December 1929 copyright of Muller’s work.
Although Muller had been proven not to have originated “his” methods because his copyright was preceded by work legitimately drawn upon by the agency which thereafter spear-headed the Jamaica Bay crossing, the Court nonetheless quoted from Baker v. Selden (Supreme Court (1880), 101 U.S. 99), “The copyright of a work on mathematical science cannot give to author the exclusive right to methods of operation which he propounds, or to diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires.”
 |  | illustrations: at left, the southern terminus of the bridge across Jamaica bay, where several bridges and ramps allow traffic to cross above and below vehicles traveling different directions, near Seaside and East Rockaway Beach, New York. Map at right shows the inspiration for this design: an earlier ramp and bridge system in Wantagh, NY.&nbps; Both maps produced by United States Geological Survey (1955 and 1947, respectively). |
T.L. Christianson vs West Pub. Co.
C.C.A.Cal. (4-18-1945) ¤ 149 F.2d 202.
“The outline map of the United States with state boundaries is in the public domain and is not copyrightable.”
A map which was marked to illustrate how a particular method is used was published within Directory Map of the National Reporter System, copyrighted 1909, renewed 1937.
“Thus, all that originated with appellant was the idea of illustrating appellee’s Reporter System by map, and his own particular arrangement and color scheme. The statutes do not provide for the protection of the intellectual conception apart from the thing produced. The copyrighting of an illustration merely precludes another from copying it, not from making his own.”
The Court found the only similarity between the earlier and the allegedly-infringing works were the outline map of the U.S. and how it shows the states grouped according to the “National Reporter System,” which the appellant didn’t originate. The color schemes were different on the alleged infringing map.
Taylor vs Metro-Goldwyn-Mayer Studios et al
USDC, SD Cal, Central Div (6-17-1953) ¤ 115 F.Supp. 156, 98 USPQ 430
Taylor claimed she “‘created[,] invented and originated certain designs, scenes and lighting effects, the latter being produced by particular arrangements of cameras and lights and by certain movements, positions and character of color screens.’” Apparently she knew that it was not the idea that she was seeking priority on, but “rather the technique or ‘know how’ of putting the idea into concrete form.” The decision quotes her complaint (which is in her lawyer’s words): “‘What she does claim in this action is a property right in a new and original representation and expression of a unique and novel combination of ideas, employing the manner of use and application of colored lighting by particular kinds of filters and colors thrown upon carefully selected materials, objects, backdrops, surface water, sub-water coral, sub-water tested substances, and the like, together with the artistic fashioning of designs and selected scenes, all by her original combination of which… she achieved new and novel effects, scenes and designs in reflected colored lighting for motion pictures.’”
For the movie Duchess of Idaho, she “conceived an idea of having a living figure in the center of a fountain, which figure was hidden while the fountain was in action, but as the waters of the fountain slowly diminished was disclosed to view.” The Judge decreed, “Lighting effects are as old as the theater itself.” Thus, the court sided with her opponent: “Defendant argues that technique and methods are not legally protectible.”
Taylor “stated that what she has really accomplished is ‘painting by light,’ and it seems to the court that ‘painting by light’ is no more protectible than painting by oil.” The Court neither confirmed nor denied that Taylor had been first with a previously-unknown method, yet “if in the instant case the plaintiff did have a secret process and it was disclosed to the defendant voluntarily, then plaintiff lost monopoly, as her process was thereby thrown into the public domain.”
Sterner vs Hearst Corporation, et al
NY Sup.Crt, N.Y.Co. (5-6-1964) ¤ 144 USPQ 237
Family Circle Inc. had a “Party Program Package,” an idea of presentation for a combination of foods and nonfoods. Sterner contended that it violated his common-law copyright and property right of an “unfinished party program” “conceived in 1948.” The Court ruled the “words and ideas are in public domain and have not been put into unique concrete form; their copying is not unfair competition.”
PIC Design Corp. vs Sterling Precision Corp.
USDC SDNY (6-29-1964) ¤ 231 F.Supp.106
“Tabular arrangement of facts and formulae” were not infringed, because copyright does not cover “format” or “visual impact”
16A.5 works not eligible for copyright: systems
Copyright Office Layman Publications to Read
“The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.
“Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
“Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.” (Fact sheet FL-108, Revised December 2005)
16A.6 copyright not available for items that should be patented
Copyright Office Publications for Laymen
FL 103 “Useful Articles”
“Designs for useful articles, such as vehicular bodies, wearing apparel, household appliances, and the like are not protected by copyright. However, the design of a useful article is subject to copyright protection to the degree that its pictorial, graphic, or sculptural features can be identified as existing independently of the utilitarian object in which they are embodied.” (Fact sheet FL103)
“The line between uncopyrightable works of industrial design and copyrightable works of applied art is not always clear. A two-dimensional painting, drawing, or other graphic work is still identifiable when it is printed on or applied to useful articles such as textile fabrics, wallpaper, containers, and the like. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the copyright law does not afford it protection. The designs of some useful objects may be entitled to protection under design patent law administered by the U.S. Patent and Trademark Office…” (Fact sheet FL103)
What the Courts Ruled
Brown Instrument Co. vs Warner, Register of Copyrights
D.C.,D.C. (12-20-1945) ¤ 68 USPQ 4
The case was described: “Action by The Brown Instrument Company against Sam B. Warner, Register of Copyrights, for declaratory judgment that certain charts are drawings of scientific or technical nature and for mandatory injunction compelling defendant to register charts, in which defendant counterclaimed for declaratory judgment that charts are not subject of copyright. Judgment for defendant… .
“The charts of the plaintiff are evidently essential parts of his machines and so referred to by it in an early catalogue and in the claims of patents under which he manufactures his instruments. Plaintiff’s contention that these charts convey information of a scientific nature seems to be rather a pretext. It is true that they may be based upon mathematical or scientific calculations, but the object is for use as parts of the plaintiff’s machines and not for the purpose of giving information… .
“In my opinion, therefore, these charts of the plaintiff are not subjects of copyright and the complaint will be dismissed.”
16A.7 effort is not copyrightable
What the Courts Ruled
Herman Axelbank vs George Rony, the Copley Press, Hallmark Productions, Kroger Babb, Fox West Coast Theaters Corp., National Broadcasting Company Inc., and Does One Through Twenty
USCA 9th Cir. (4-25-1960) ¤ 277 F.2d 314
Axelbank had sued Rony and Rony’s licensees after Axelbank assumed that the newsfilm that Rony was selling was derived from a compilation created by Axelbank. The Court found that Axelbank and Rony each had independently amassed substantial collections of public-domain newsfilm and that where Rony had duplicate material of what Axelbank had it was because each had acquired the material independently of the other. In a remark about a hypothetical situation, the decision states: “Of course, even though the source of the material in appellant’s film was in the public domain, this would not permit Rony to directly copy appellant’s film. Rony could use a copy of the original news-reel films which were part of the public domain, but he could not copy appellant’s copy thereof. ‘Others are free to copy the original. They are not free to copy the copy.’ Bleistein v. Donaldson Lithographic Co., 1903, 188 U.S. 239, 249, 23 S.Ct. 298, 299, 47 L.Ed. 460. The trial court found, however, that the films were collected by independent efforts.”
EDITOR’S NOTE: The remark about copying from copies—“Others are free to copy the original. They are not free to copy the copy.”—was derived (as the citation verifies) from a Supreme Court case which concerned reproduction of a work where the author infringed had been the one to record “the personal reaction of an individual upon nature”, to have “drawn from the life,” “from sight of a performance”. In the Axelbank case, the plaintiff had merely duplicated by means of photo-laboratory equipment the image already on film that the plaintiff had not so much as licensed. (If there were any differences between Axelbank’s copies and the original, they were accidental ones of shading, contrast and focus which are the unintended results of using photographic processes to make copies of copies. Such changes would not substantiate a claim that Axelbank’s reproductions added “originality.”) Given that the Judge’s remarks were made in a parenthetical remark irrelevant to the verdict, it would be understandable that any objection that any of the parties had to this viewpoint were not pursued in an appeal. Nonetheless, the editor of this web site contends that this judge’s interpretation of Bleistein does not stand scrutiny. The Supreme Court’s ruling in Feist (“The White Pages” case, 1991) substantiates the editor’s opinion that Bleistein should be interpreted on the basis that (quoting Feist) “copyright rewards originality, not effort.” Another Supreme Court case involving copying from a copy was Dastar v. Twentieth Century Fox Film Corp. (launch this).
16A.7a eligibility for copyright
What the Courts Ruled
The National Basketball Association vs Motorola, Inc.
USCA 2nd Cir. (1-30-1997) ¤ 105 F.3d 841
In judging a case concerning whether sports scores could be reported in “real time” without the authority of the sports league, the Court reported some aspects of sports events and sports broadcasts that bear on their copyrightability.
“Sports events are not ‘authored’ in any common sense of the word… .
“Indeed, prior to 1976, there was even doubt that broadcasts describing or depicting such events, which have a far stronger case for copyrightability than the events themselves, were entitled to copyright protection. Indeed, as described in the next subsection of this opinion, Congress found it necessary to extend such protection to recorded broadcasts of live events. The fact that Congress did not extend such protection to the events themselves confirms our view that the district court correctly held that appellants were not infringing a copyright in the NBA games.
“As noted, recorded broadcasts of NBA games — as opposed to the games themselves — are now entitled to copyright protection. The Copyright Act was amended in 1976 specifically to insure that simultaneously-recorded transmissions of live performances and sporting events would meet the Act’s requirement that the original work of authorship be ‘fixed in any tangible medium of expression.’…”
(The judgment of this particular case went against the NBA in that the party accused of infringement “reproduced only facts from the broadcasts, not the expression or description of the game that constitutes the broadcast. The ‘fact/expression dichotomy’ is a bedrock principle of copyright law that ‘limits severely the scope of protection in fact-based works.’”. Anyone reproducing a sports broadcast from 1978 or later, other than one with obvious signs of being in the public domain (see other sections of this web site), should assume that the relevant sports league can enforce copyright.)
16A.8 eligibility expires if unpublished too long
Where to Look in the Law
1909 Act: No limitation
1947 Act: No limitation
1976 Act: §303
“Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2027.” (1976 Act, §303; quoted here in full)
(Had the above section not allowed, “In no case, however, shall the term of copyright in such a work expire before December 31, 2002”, “the term provided by section 302” would have quickly eliminated from eligibility the unpublished works of creators who had died earlier than fifty years prior. (The fifty years is determined by the fifty years of protection following death; where that had already occurred, the full possible term was over. As it was, December 31, 2002, was the last day to obtain copyright on (by means of publishing for the first time) a work by someone dead since longer ago than the amount of time after death specified in the copyright term.))
Copyright Office Publications for Laymen
“For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047” (Fact sheet SL-15 Sonny Bono)
“Under the 1909 Copyright Act, works that were neither published nor registered did not enjoy statutory protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered. But under section 303 of the 1976 Copyright Act, works that were created but neither published nor registered in the Copyright Office before Jan. 1, 1978, lost their common law protection and acquired a statutory term of protection that was the life of the author plus 50 years, amended in 1998 to life plus 70 years.
“As a result of the 1976 Copyright Act, any of the works in question whose author had died over 50 years prior to 1978 would have entered the public domain after Dec. 31, 1977. To provide a reasonable term of copyright protection for these works, and in light of the fact that these works had enjoyed perpetual protection under common law, Congress extended their term by at least 25 more years. Congress also encouraged publication by providing an additional 25 more years, extended in 1998 to 45 more years, of protection if the work was published on or before Dec. 31, 2002.
“That first 25-year period expired on Dec. 31, 2002. Any work that was neither published nor registered as of Jan. 1, 1978, and whose author died before 1933 entered the public domain on Jan. 1, 2003, unless it was published on or before Dec. 31, 2002.” (Copyright Office news release titled “Certain Unpublished, Unregistered Works Enter Public Domain,” dated January 13, 2003)
