Notes on 17 U.S.C. § 102 : US Code - Notes

Search Notes on 17 U.S.C. § 102 : US Code - Notes

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2544;
Pub. L. 101-650, title VII, Sec. 703, Dec. 1, 1990, 104 Stat.
5133.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
Original Works of Authorship. The two fundamental criteria of
copyright protection - originality and fixation in tangible form
are restated in the first sentence of this cornerstone provision.
The phrase "original works or authorship," which is purposely left
undefined, is intended to incorporate without change the standard
of originality established by the courts under the present
copyright statute. 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.
In using the phrase "original works of authorship," rather than
"all the writings of an author" now in section 4 of the statute
[section 4 of former title 17], the committee's purpose is to avoid
exhausting the constitutional power of Congress to legislate in
this field, and to eliminate the uncertainties arising from the
latter phrase. Since the present statutory language is
substantially the same as the empowering language of the
Constitution [Const. Art. I, Sec. 8, cl. 8], a recurring question
has been whether the statutory and the constitutional provisions
are coextensive. If so, the courts would be faced with the
alternative of holding copyrightable something that Congress
clearly did not intend to protect, or of holding constitutionally
incapable of copyright something that Congress might one day want
to protect. To avoid these equally undesirable results, the courts
have indicated that "all the writings of an author" under the
present statute is narrower in scope than the "writings" of
"authors" referred to in the Constitution. The bill avoids this
dilemma by using a different phrase - "original works of
authorship" - in characterizing the general subject matter of
statutory copyright protection.
The history of copyright law has been one of gradual expansion in
the types of works accorded protection, and the subject matter
affected by this expansion has fallen into two general categories.
In the first, scientific discoveries and technological developments
have made possible new forms of creative expression that never
existed before. In some of these cases the new expressive forms -
electronic music, filmstrips, and computer programs, for example -
could be regarded as an extension of copyrightable subject matter
Congress had already intended to protect, and were thus considered
copyrightable from the outset without the need of new legislation.
In other cases, such as photographs, sound recordings, and motion
pictures, statutory enactment was deemed necessary to give them
full recognition as copyrightable works.
Authors are continually finding new ways of expressing
themselves, but it is impossible to foresee the forms that these
new expressive methods will take. The bill does not intend either
to freeze the scope of copyrightable subject matter at the present
stage of communications technology or to allow unlimited expansion
into areas completely outside the present congressional intent.
Section 102 implies neither that that subject matter is unlimited
nor that new forms of expression within that general area of
subject matter would necessarily be unprotected.
The historic expansion of copyright has also applied to forms of
expression which, although in existence for generations or
centuries, have only gradually come to be recognized as creative
and worthy of protection. The first copyright statute in this
country, enacted in 1790, designated only "maps, charts, and
books"; major forms of expression such as music, drama, and works
of art achieved specific statutory recognition only in later
enactments. Although the coverage of the present statute is very
broad, and would be broadened further by the explicit recognition
of all forms of choreography, there are unquestionably other areas
of existing subject matter that this bill does not propose to
protect but that future Congresses may want to.
Fixation in Tangible Form. As a basic condition of copyright
protection, the bill perpetuates the existing requirement that a
work be fixed in a "tangible medium of expression," and adds that
this medium may be one "now known or later developed," and that the
fixation is sufficient if the work "can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a
machine or device." This broad language is intended to avoid the
artificial and largely unjustifiable distinctions, derived from
cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1
(1908) [28 S.Ct. 319, 52 L.Ed. 655], under which statutory
copyrightability in certain cases has been made to depend upon the
form or medium in which the work is fixed. Under the bill it makes
no difference what the form, manner, or medium of fixation may be -
whether it is in words, numbers, notes, sounds, pictures, or any
other graphic or symbolic indicia, whether embodied in a physical
object in written, printed, photographic, sculptural, punched,
magnetic, or any other stable form, and whether it is capable of
perception directly or by means of any machine or device "now known
or later developed."
Under the bill, the concept of fixation is important since it not
only determines whether the provisions of the statute apply to a
work, but it also represents the dividing line between common law
and statutory protection. As will be noted in more detail in
connection with section 301, an unfixed work of authorship, such as
an improvisation or an unrecorded choreographic work, performance,
or broadcast, would continue to be subject to protection under
State common law or statute, but would not be eligible for Federal
statutory protection under section 102.
The bill seeks to resolve, through the definition of "fixation"
in section 101, the status of live broadcasts - sports, news
coverage, live performances of music, etc. - that are reaching the
public in unfixed form but that are simultaneously being recorded.
When a football game is being covered by four television cameras,
with a director guiding the activities of the four cameramen and
choosing which of their electronic images are sent out to the
public and in what order, there is little doubt that what the
cameramen and the director are doing constitutes "authorship." The
further question to be considered is whether there has been a
fixation. If the images and sounds to be broadcast are first
recorded (on a video tape, film, etc.) and then transmitted, the
recorded work would be considered a "motion picture" subject to
statutory protection against unauthorized reproduction or
retransmission of the broadcast. If the program content is
transmitted live to the public while being recorded at the same
time, the case would be treated the same; the copyright owner would
not be forced to rely on common law rather than statutory rights in
proceeding against an infringing user of the live broadcast.
Thus, assuming it is copyrightable - as a "motion picture" or
"sound recording," for example - the content of a live transmission
should be regarded as fixed and should be accorded statutory
protection if it is being recorded simultaneously with its
transmission. On the other hand, the definition of "fixation" would
exclude from the concept purely evanescent or transient
reproductions such as those projected briefly on a screen, shown
electronically on a television or other cathode ray tube, or
captured momentarily in the "memory" of a computer.
Under the first sentence of the definition of "fixed" in section
101, a work would be considered "fixed in a tangible medium of
expression" if there has been an authorized embodiment in a copy or
phonorecord and if that embodiment "is sufficiently permanent or
stable" to permit the work "to be perceived, reproduced, or
otherwise communicated for a period of more than transitory
duration." The second sentence makes clear that, in the case of "a
work consisting of sounds, images, or both, that are being
transmitted," the work is regarded as "fixed" if a fixation is
being made at the same time as the transmission.
Under this definition "copies" and "phonorecords" together will
comprise all of the material objects in which copyrightable works
are capable of being fixed. The definitions of these terms in
section 101, together with their usage in section 102 and
throughout the bill, reflect a fundamental distinction between the
"original work" which is the product of "authorship" and the
multitude of material objects in which it can be embodied. Thus, in
the sense of the bill, a "book" is not a work of authorship, but is
a particular kind of "copy." Instead, the author may write a
"literary work," which in turn can be embodied in a wide range of
"copies" and "phonorecords," including books, periodicals, computer
punch cards, microfilm, tape recordings, and so forth. It is
possible to have an "original work of authorship" without having a
"copy" or "phonorecord" embodying it, and it is also possible to
have a "copy" or "phonorecord" embodying something that does not
qualify as an "original work of authorship." The two essential
elements - original work and tangible object - must merge through
fixation in order to produce subject matter copyrightable under the
statute.
Categories of Copyrightable Works. The second sentence of section
102 lists seven broad categories which the concept of "works of
authorship" is said to "include". The use of the word "include," as
defined in section 101, makes clear that the listing is
"illustrative and not limitative," and that the seven categories do
not necessarily exhaust the scope of "original works of authorship"
that the bill is intended to protect. Rather, the list sets out the
general area of copyrightable subject matter, but with sufficient
flexibility to free the courts from rigid or outmoded concepts of
the scope of particular categories. The items are also overlapping
in the sense that a work falling within one class may encompass
works coming within some or all of the other categories. In the
aggregate, the list covers all classes of works now specified in
section 5 of title 17 [section 5 of former title 17]; in addition,
it specifically enumerates "pantomimes and choreographic works".
Of the seven items listed, four are defined in section 101. The
three undefined categories - "musical works," "dramatic works," and
"pantomimes and choreographic works" - have fairly settled
meanings. There is no need, for example, to specify the
copyrightability of electronic or concrete music in the statute
since the form of a work would no longer be of any importance, nor
is it necessary to specify that "choreographic works" do not
include social dance steps and simple routines.
The four items defined in section 101 are "literary works,"
"pictorial, graphic, and sculptural works," "motion pictures and
audiovisual works", and "sound recordings". In each of these cases,
definitions are needed not only because the meaning of the term
itself is unsettled but also because the distinction between "work"
and "material object" requires clarification. The term "literary
works" does not connote any criterion of literary merit or
qualitative value: it includes catalogs, directories, and similar
factual, reference, or instructional works and compilations of
data. It also includes computer data bases, and computer programs
to the extent that they incorporate authorship in the programmer's
expression of original ideas, as distinguished from the ideas
themselves.
Correspondingly, the definition of "pictorial, graphic, and
sculptural works" carries with it no implied criterion of artistic
taste, aesthetic value, or intrinsic quality. The term is intended
to comprise not only "works of art" in the traditional sense but
also works of graphic art and illustration, art reproductions,
plans and drawings, photographs and reproductions of them, maps,
charts, globes, and other cartographic works, works of these kinds
intended for use in advertising and commerce, and works of "applied
art." There is no intention whatever to narrow the scope of the
subject matter now characterized in section 5(k) [section 5(k) of
former title 17] as "prints or labels used for articles of
merchandise." However, since this terminology suggests the material
object in which a work is embodied rather than the work itself, the
bill does not mention this category separately.
In accordance with the Supreme Court's decision in Mazer v.
Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. 630, rehearing
denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], works of
"applied art" encompass all original pictorial, graphic, and
sculptural works that are intended to be or have been embodied in
useful articles, regardless of factors such as mass production,
commercial exploitation, and the potential availability of design
patent protection. The scope of exclusive rights in these works is
given special treatment in section 113, to be discussed below.
The Committee has added language to the definition of "pictorial,
graphic, and sculptural works" in an effort to make clearer the
distinction between works of applied art protectable under the bill
and industrial designs not subject to copyright protection. The
declaration that "pictorial, graphic, and sculptural works" include
"works of artistic craftsmanship insofar as their form but not
their mechanical or utilitarian aspects are concerned" is classic
language; it is drawn from Copyright Office regulations promulgated
in the 1940's and expressly endorsed by the Supreme Court in the
Mazer case.
The second part of the amendment states that "the design of a
useful article * * * shall be considered a pictorial, graphic, or
sculptural work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that can be
identified separately from, and are capable of existing
independently of, the utilitarian aspects of the article." A
"useful article" is defined as "an article having an intrinsic
utilitarian function that is not merely to portray the appearance
of the article or to convey information." This part of the
amendment is an adaptation of language added to the Copyright
Office Regulations in the mid-1950's in an effort to implement the
Supreme Court's decision in the Mazer case.
In adopting this amendatory language, the Committee is seeking to
draw as clear a line as possible between copyrightable works of
applied art and uncopyrighted works of industrial design. A two-
dimensional painting, drawing, or graphic work is still capable of
being identified as such when it is printed on or applied to
utilitarian articles such as textile fabrics, wallpaper,
containers, and the like. The same is true when a statue or carving
is used to embellish an industrial product or, as in the Mazer
case, is incorporated into a product without losing its ability to
exist independently as a work of art. On the other hand, although
the shape of an industrial product may be aesthetically satisfying
and valuable, the Committee's intention is not to offer it
copyright protection under the bill. Unless the shape of an
automobile, airplane, ladies' dress, food processor, television
set, or any other industrial product contains some element that,
physically or conceptually, can be identified as separable from the
utilitarian aspects of that article, the design would not be
copyrighted under the bill. The test of separability and
independence from "the utilitarian aspects of the article" does not
depend upon the nature of the design - that is, even if the
appearance of an article is determined by aesthetic (as opposed to
functional) considerations, only elements, if any, which can be
identified separately from the useful article as such are
copyrightable. And, even if the three-dimensional design contains
some such element (for example, a carving on the back of a chair or
a floral relief design on silver flatware), copyright protection
would extend only to that element, and would not cover the over-all
configuration of the utilitarian article as such.
A special situation is presented by architectural works. An
architect's plans and drawings would, of course, be protected by
copyright, but the extent to which that protection would extend to
the structure depicted would depend on the circumstances. Purely
nonfunctional or monumental structures would be subject to full
copyright protection under the bill, and the same would be true of
artistic sculpture or decorative ornamentation or embellishment
added to a structure. On the other hand, where the only elements of
shape in an architectural design are conceptually inseparable from
the utilitarian aspects of the structure, copyright protection for
the design would not be available.
The Committee has considered, but chosen to defer, the
possibility of protecting the design of typefaces. A "typeface" can
be defined as a set of letters, numbers, or other symbolic
characters, whose forms are related by repeating design elements
consistently applied in a notational system and are intended to be
embodied in articles whose intrinsic utilitarian function is for
use in composing text or other cognizable combinations of
characters. The Committee does not regard the design of typeface,
as thus defined, to be a copyrightable "pictorial, graphic, or
sculptural work" within the meaning of this bill and the
application of the dividing line in section 101.
Enactment of Public Law 92-140 in 1971 [Pub. L. 92-140, Oct. 15,
1971, 85 Stat. 391, which amended sections 1, 5, 19, 20, 26, and
101 of former title 17, and enacted provisions set out as a note
under section 1 of former title 17] marked the first recognition in
American copyright law of sound recordings as copyrightable works.
As defined in section 101, copyrightable "sound recordings" are
original works of authorship comprising an aggregate of musical,
spoken, or other sounds that have been fixed in tangible form. The
copyrightable work comprises the aggregation of sounds and not the
tangible medium of fixation. Thus, "sound recordings" as
copyrightable subject matter are distinguished from "phonorecords,"
the latter being physical objects in which sounds are fixed. They
are also distinguished from any copyrighted literary, dramatic, or
musical works that may be reproduced on a "phonorecord."
As a class of subject matter, sound recordings are clearly within
the scope of the "writings of an author" capable of protection
under the Constitution [Const. Art. I, Sec. 8, cl. 8], and the
extension of limited statutory protection to them was too long
delayed. Aside from cases in which sounds are fixed by some purely
mechanical means without originality of any kind, the copyright
protection that would prevent the reproduction and distribution of
unauthorized phonorecords of sound recordings is clearly justified.
The copyrightable elements in a sound recording will usually,
though not always, involve "authorship" both on the part of the
performers whose performance is captured and on the part of the
record producer responsible for setting up the recording session,
capturing and electronically processing the sounds, and compiling
and editing them to make the final sound recording. There may,
however, be cases where the record producer's contribution is so
minimal that the performance is the only copyrightable element in
the work, and there may be cases (for example, recordings of
birdcalls, sounds of racing cars, et cetera) where only the record
producer's contribution is copyrightable.
Sound tracks of motion pictures, long a nebulous area in American
copyright law, are specifically included in the definition of
"motion pictures," and excluded in the definition of "sound
recordings." To be a "motion picture," as defined, requires three
elements: (1) a series of images, (2) the capability of showing the
images in certain successive order, and (3) an impression of motion
when the images are thus shown. Coupled with the basic requirements
of original authorship and fixation in tangible form, this
definition encompasses a wide range of cinematographic works
embodied in films, tapes, video disks, and other media. However, it
would not include: (1) unauthorized fixations of live performances
or telecasts, (2) live telecasts that are not fixed simultaneously
with their transmission, or (3) filmstrips and slide sets which,
although consisting of a series of images intended to be shown in
succession, are not capable of conveying an impression of motion.
On the other hand, the bill equates audiovisual materials such as
filmstrips, slide sets, and sets of transparencies with "motion
pictures" rather than with "pictorial, graphic, and sculptural
works." Their sequential showing is closer to a "performance" than
to a "display," and the definition of "audiovisual works," which
applies also to "motion pictures," embraces works consisting of a
series of related images that are by their nature, intended for
showing by means of projectors or other devices.
Nature of Copyright. Copyright does not preclude others from
using the ideas or information revealed by the author's work. It
pertains to the literary, musical, graphic, or artistic form in
which the author expressed intellectual concepts. Section 102(b)
makes clear that copyright protection does not 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.
Some concern has been expressed lest copyright in computer
programs should extend protection to the methodology or processes
adopted by the programmer, rather than merely to the "writing"
expressing his ideas. Section 102(b) is intended, among other
things, to make clear that the expression adopted by the programmer
is the copyrightable element in a computer program, and that the
actual processes or methods embodied in the program are not within
the scope of the copyright law.
Section 102(b) in no way enlarges or contracts the scope of
copyright protection under the present law. Its purpose is to
restate, in the context of the new single Federal system of
copyright, that the basic dichotomy between expression and idea
remains unchanged.
AMENDMENTS
1990 - Subsec. (a)(8). Pub. L. 101-650 added par. (8).
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101-650 applicable to any architectural work
created on or after Dec. 1, 1990, and any architectural work, that,
on Dec. 1, 1990, is unconstructed and embodied in unpublished plans
or drawings, except that protection for such architectural work
under this title terminates on Dec. 31, 2002, unless the work is
constructed by that date, see section 706 of Pub. L. 101-650, set
out as a note under section 101 of this title.