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16C originality is a prerequisite for copyright

Where to Look in the Law

This point is at best implicit in all versions of the Copyright Act in effect from 1909 onward.

Copyright Office Publications for Laymen

“In order to be protected by copyright, a work must contain at least a certain minimum amount of original literary, pictorial, or musical expression. Copyright does not extend to names, titles, and short phrases or clauses such as column headings or simple checklists. The format, arrangement, or typography of a work is not protected. Furthermore, copyright protection does not extend to works consisting entirely of information that is common property containing no original authorship, 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.”  (Information Circular 32)

“Copyright protection extends to a description, explanation, or illustration of an idea or system, assuming that the requirements of the copyright law are met. Copyright in such a case protects the particular literary or pictorial expression chosen by the author.”  (Information Circular 31)

“Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.”  (Fact sheet FL-122, Revised July 2006)

What the Supreme Court Ruled

 

Burrow-Giles Lithographic Co. vs Sarony

111 U.S. 53 (3-17-1884)
In January, 1882, Napoleon Sarony photographed renowned author Oscar Wilde (with Wilde’s cooperation), producing the photo which became known as “Oscar Wilde, No. 18.”  Sarony copyrighted it, considering himself “author, inventor, designer, and proprietor of the photograph” which was “entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit.”
Sarony.jpg (51124 bytes)
Napoleon Sarony photograph of Oscar Wilde, “Oscar Wilde, No. 18.” (January 1882)

Burrow-Giles Lithographic Co. reproduced the photograph without authorization.  This would unquestionably be infringement in the case of “books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts”, yet photographs were not in that list, photography not yet having been invented when Congress enacted copyright law in 1802.  (The original photograph nonetheless bore notice reading “Copyright, 1882, by N. Sarony”.)

The Court ruminated as to whether “a photograph is the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture” and “[t]hat while the effect of light on the prepared plate may have been a discovery in the production of these pictures, and patents could properly be obtained for the combination of the chemicals, for their application to the paper or other surface, for all the machinery by which the light reflected from the object was thrown on the prepared plate, and for all the improvements in this machinery, and in the materials, the remainder of the process is merely mechanical, with no place for novelty, invention, or originality.  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.  This may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection.”  Having questioned whether photographs may be merely the journalistic recording of phenomena rather than the results of the selective analytical processes of focused minds, the Court determined that this photograph in particular was worthy of comparison to “an engraving, a painting, a print” insofar as the latter media were known to be able to “embody the intellectual conception of its author, in which there is novelty, invention, originality”.

The photograph “Oscar Wilde, No. 18”, in the view of the Court, insofar as the subject was posed and insofar as the photo has “graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, …”, “show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell, as it has done by section 4952 of the Revised Statutes.”  (Section 4952 had been enacted 1873, nine years before Wilde sat for the photograph.)

The decision of the Court on this photograph did not extend to all photographs.  There was still the question of whether photography merely was “the mere mechanical reproduction” of the objects before the camera, thus “involv[ing] no originality of thought or any novelty”  “This may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection.  On the question as thus stated we decide nothing.”


 

Callaghan vs Myers

128 U.S. 617 (12-17-1888) ¤ 9 S.Ct. 177, 32 L.Ed. 547

The Supreme Court decided whether the changes, additions, selection and indexing made to legal decisions when put into book form constitute a copyrightable new work.  The Court determined that they did.

Eugene B. Myers had sued Bernard Callaghan, Andrew Callaghan, Andrew P. Callaghan, and Sheldon A. Clark, composing the firm of Callaghan & Co., Marshall D. Ewell, and Van Buren Denslow.

The reports of the Supreme Court of the State of Illinois, known as “Illinois Reports,” were prepared for publication by Norman L. Freeman on behalf of the publishing firm of E.B. Myers & Chandler.  (Chandler later sold his interest to partner Eugene B. Myers.)  Each volume “contained a large amount of matter original[…]; that, among other original matter, Mr. Freeman prepared for each case a syllabus or head-notes, and for many cases in each volume a statement of the facts of the case; that also in many of them he copied, or copied and arranged, the instructions ruled upon by the court below; that he also prepared and inserted, or gave, in all or many of them, the stipulations made, or made and filed, therein, and in many of them he gave the errors assigned; that he also prepared, for each of them, a table of the cases cited therein, and a table of the cases decided, and other original matter”.  Myers “had the exclusive right to the arrangement of each of them, and the exclusive right to publish the head-notes or syllabuses, and to the arrangement of the pages of the books, and to the division of the opinions into separate volumes, and to the table of cases cited and table of cases decided, as published in each of them, and to the arrangement of the decisions, as accompanied with the head-notes, stipulations, errors assigned, instructions, table of cases cited, table of cases reported and indexes accompanying the same, and the exclusive right to all of said works, except to the matter contained in the opinions of the judges”.  (“[O]pinions of the judges are public property, and not the subject of copyright by the reporter”.)

The firm of Callaghan & Co. came to offer their own editions of these cases, and was said to have “used the decisions of the Supreme Court of Illinois only as published by the plaintiff, and prepared the volumes from the books of the plaintiff, and did not procure the matter from original sources, and, in all of the books, used the works of the plaintiff and copied the title-pages thereof, and used the division and arrangement of the plaintiff in the volumes and the paging thereof, and copied the table of cases cited and the table of cases reported from each of the books of the plaintiff and also copied from the same the stipulations, errors assigned, and instructions given by the court; that, in publishing the statements of the cases and in preparing the syllabuses, the defendants used the books of the plaintiff and the changes they made were merely colorable, and were made only for the purpose of avoiding the claim of the plaintiff; that the books, as printed and published by the defendants, were all and each merely imitations of the volumes of the plaintiff, corresponding in number; that all and each of said republications by the defendants are piracies on the copyrights of the plaintiff, and the books have been made by them to take the place of, and, as far as they can, to supersede the books of the plaintiff”.

In their defense, Callaghan & Co. said of Mr. Freeman “that but few statements of cases were prepared by him, and those few were drawn by him from the opinions of the court in the cases reported.”  Further, they admitted “the defendants have used the opinions of the Supreme Court of Illinois as published by the plaintiff; but avers that they have corrected errors in names, citations, and other matters therein, and denies that they have prepared the books from those of the plaintiff, or used the work of the plaintiff, except in so far as plaintiff’s books are free to the use of any and all persons[… .] It avers that the statements of cases and syllabuses in the volumes as republished by the defendants are wholly original and entirely different from and unlike those of the plaintiff, except in the few instances where there is an apparent resemblance, owing to the fact that those of the defendants have been drawn from the opinions of the court, and those of the plaintiff in the same cases appear to have been drawn from the same source[…]”  They said that “in all cases they had carefully compared each of the opinions with the original opinions of the court, on file or recorded in the respective cases, and had made frequent corrections therein, to correspond with the originals; […] and was arranged, reported, compiled, and edited wholly by the original labor of the editors employed by the defendants for that purpose, and whose names appeared as such editors on the title-page and cover of each of the volumes of the defendants.”

The Supreme Court ruled that “Of this matter [in Freeman/Myers’s books], all but the opinions of the court and what is contained in those opinions is the work of the reporter and the result of intellectual labor on his part.”  “The general proposition that the reporter of a volume of law reports can obtain a copyright for it as an author, and that such copyright will cover the parts of the book of which he is the author, although he has no exclusive right in the judicial opinions published, is supported by authority.”

As to infringement, the Supreme Court concurred with the Circuit Court that, “the volumes of the defendants, as edited by those employed by them, are very much condensed, as compared with Mr. Freeman’s reports, and yet the paging of the volumes is substantially the same throughout, so that the cases in the corresponding volumes appear on the same page. The list of cases which precedes each report is the same. The defendants Ewell and Denslow, who were employed by the other defendants to annotate these decisions or reports, both state, upon examination, that their work was independent of that of Mr. Freeman; but it appears from the evidence that all the volumes of Mr. Freeman were used in this editing or annotating; and although it may have been their intention to make an independent work, it is apparent, from a comparison of the Freeman volumes and those of the defendants, that the former were used throughout by the editors employed by the defendants. It is true that in each volume, perhaps in the majority of cases, there is the appearance of independent labor performed by them, without regard to the volumes of Mr. Freeman; but yet in every volume it is also apparent that Mr. Freeman’s volumes were used; in some instances words and sentences copied without change, in others, changed only in form; and the conclusion is irresistible, that for a large portion of the work performed in behalf of the defendants, the editors did not resort to original sources of information, but obtained that information from the volumes of Mr. Freeman.”  The Supreme Court remarked, “It may be added, that one of the most significant evidences of infringement exists frequently in the defendants’ volumes, namely, the copying of errors made by Mr. Freeman.”  Damages were awarded.

(The case was slightly complicated by Freeman working on behalf of the state of Illinois while preparing the volumes.  Although it was not settled whether his preparation of the volumes was done as an employee, such a question was outside inquiry inasmuch as “there was no legislation of the State of Illinois which forbade the obtaining of such a copyright by Mr. Freeman”, who was not a judge and never claimed copyright in any writing of a judge.  Current copyright law prohibits copyright in works done by Federal employees as part of their jobs.)


 

Holmes vs Hurst

174 U.S. 82 (4-24-1899) ¤ 19 S.Ct. 606,, 43 L.Ed. 904.

“The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author.  But the right is to that arrangement of words which the author has selected to express his ideas…”

(A thorough summary of this case is under derivative versions.)


 

Feist Publications, Inc. vs Rural Tel. Service Co.

499 U.S. 340 (3-27-1991) (This has become known as the “White Pages” decision.)

It might seem that a person or company which spends vast numbers of hours and thousands of dollars to create an information resource would be entitled to protect its work from those who would copy the finished product, but the Supreme Court ruled that “copyright rewards originality, not effort.”

Feist Publications, Inc., specializes in area-wide telephone directories covering a much larger geographic range than the directories of Rural Telephone Service Company.  “When Rural refused to license its white pages listings to Feist for a directory covering 11 different telephone service areas, Feist extracted the listings it needed from Rural’s directory without Rural’s consent.  Although Feist altered many of Rural’s listings, several were identical to listings in Rural’s white pages.”  The Supreme Court determined that, on the basis of how copyright regulation is justified within the Constitution, protection is accorded “independent creation plus a modicum of creativity.  Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable.  Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves.”  The Supreme Court decided that “Lower courts that adopted a ‘sweat of the brow’ or ‘industrious collection’ test” did so without basis in law.  “Rural’s selection of listings could not be more obvious: It publishes the most basic information — name, town, and telephone number — about each person who applies to it for telephone service.  This is ‘selection’ of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.  Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original.”  As to protection: “copyright rewards originality, not effort.”

The Supreme Court elaborated on the differences between copyrightable and uncopyrightable matter:

“Rural’s white pages do not meet the constitutional or statutory requirements for copyright protection.  While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural’s white pages.  The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way.  Rural’s selection of listings — subscribers’ names, towns, and telephone numbers — could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.  In fact, it is plausible to conclude that Rural did not truly ‘select’ to publish its subscribers’ names and telephone numbers, since it was required to do so by state law. Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory.  It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.”


What the Lower Courts Ruled

 

Hoffman vs Le Traunik

D.C.N.Y. (12-8-1913) ¤ 209 F. 375

Monologues had been copied, each “seven or more typewritten pages” of jokes.  However, the defendants took separated lines from each disjointed whole, making up a new combination.  The Judge considered the crucial issue to be the principal that “‘a work, in order to be copyrighted, must be original in the sense that the author has created it by his own skill, labor, and judgment, without directly copying or evasively imitating the work another.’” (The source of the inner quote is not cited.)  However, because it was found that the complainant could not substantiate that the originality had began with him, the Motion was denied.


 

Pagano et al vs Chas. Beseler Co.

D.C.,S.D.N.Y. (7-3-1916) ¤ 234 F. 963

The plaintiff owned copyright in a photo of 5th Avenue on Manhattan Island, showing that avenue from 41st St. to 42nd St.  The Court said that the photo did “bring out the proper setting for both animate and inanimate objects, with the adjunctive features of light, shade, position, etc.”  It was entitled to copyright protection.


 

Norden vs Oliver Ditson Co.

D.C.Mass. (1-9-1936) ¤ 13 F.Supp. 415

Russian composer Alexander Arkhangelsky’s music was adapted by an American named N. Lindsay Norden, who substituted English words for the original Russian and made minor changes in length to some musical notes.  Norden copyrighted his adaptation of Arkhangelsky’s “Hymn of Sophronius” (a translated title) as “A Gladstone Light”.  The defendant also published an adaptation of this same work, calling his “O Light Divine” and also citing Arkhangelsky as the source of the music.  Had both adapted the same Russian original with different English words, this would have been permitted; the Russian music was in the public domain.  The defendant admits to copying from plaintiff, and that he never saw the Russian original, but testified that he changed the rhythm and used an old hymn book for some words.  Although the defendant incorporated some of Norden’s additions, the Judge decided that Norden’s changes were those “which any skilled musician might make.”  In summary, “The Norden adaptation of Arkhangelsky’s music was not copyrightable as such.”

(At the time, the United States did not recognize Russian [Soviet] copyrights.  As of the early 21st century, given that 1917-1990 Soviet copyrights for works not created by individuals were works of the government, a substantial number of significant Soviet-era Russian works remain in the public domain in the United States.)


 

Seltzer vs Sunbrock

D.C.,S.D.Cal. (3-8-1938) ¤ 22 F.Supp. 621

Seltzer had created pamphlets which the Court described as “a set of regulations for running a race.”  The Court rejected the view that “… in the idea of staging a purportedly transcontinental roller-skating race, Seltzer had a ‘distinctive treatment of a theme’ which ought to be protected by copyright law.  Such an argument would be valid only if the theme were an essential part of a dramatic composition.  Manifestly, such reasoning cannot successfully be applied to a game or race.  Furthermore, plaintiffs’ contention cannot prevail, resting as it must on … ample evidence of the use by both sides of common source material in the public domain, and which raises very grave questions as the originality of the alleged copyrighted ideas.  Were plaintiffs’ contention to prevail in this case, might not the author of a copyrighted novel, containing a vivid and colorful description of one of the earlier football games, enjoin any future student body from employing the customary devices and patterns of the modern rooting section?  As every enthusiast knows, the waving of pom-poms, the quickly shifting color patters, the intermission stunts, and in fact most of the much cherished atmosphere of college football has been associated with regattas, folk festivals, and outdoor sports since time immemorial… .  Plaintiffs’ sources are just as obvious, and his originality almost as questionable, as would be that such a football-minded novelist.”

(A more complete summary is under sports.)


 

Vitaphone Corporation vs Hutchinson Amusement Co.

DC, D.Mass (7-25-1939) ¤ 42 USPQ 431, 28 F.Supp. 526
Vitaphone
Vitaphone flag

Hutchinson operated the New Portland Theater in Portland, ME.  He was sued by Vitaphone Corporation (a division of Warner Bros. which made shorts) for unauthorized, unpaid showings of “eight motion-picture films or photoplays” “known in the business as ‘shorts,’ … used in motion-picture theaters to fill in between so-called feature pictures and to occupy the time so that the feature picture may ‘come on’ according to the program advertised by the theater.”

The theater owner testified that theaters sometimes “borrow” a short from “other theaters in their community” “to fill up the time on their program” where “feature pictures are not of sufficient length to fill up the time according to their advertised schedules”.  He argued that shorts were not qualified for copyright status.  “The first ground upon which invalidity of the copyright is based is that the photoplays in question showed works so trivial, vulgar and of such little artistic value that they did not merit the protection of the copyright laws.”  The Court decreed that although the shorts were not feature films, “it must be admitted that they showed originality.”

Vitaphone

illustration: Vitaphone advertised its short films as half the fun of an evening in a movie theater.  The owner of a Maine movie theater nonetheless thought that they didn’t have to be paid for.


 

Drugtax, Inc. vs Systems Programming Corp.

USDC, M.D. Penn. (11-3-1965) ¤ 147 USPQ 313

“Telephone dial, omitting the words in the circle, is clearly within the public domain.”


 

Tompkins Graphics, Inc. vs Zipatone, Inc., et al

USDC E.D.Penn (8-15-1983) ¤ 222 USPQ 49

“Variations of squares, rectangles, circles and ellipses comprise four of the six pages which Zipatone allegedly copied from [Tompkins].  Such basic shapes have long been in the public domain and therefore cannot be regulated by copyrights.”


 

Stuart Y. Silverstein vs Penguin Putnam, Inc.

USCA 2nd Cir. (5-7-2004) ¤ 368 F.3d 77, 70 U.S.P.Q.2D (BNA) 1773

Silverstein published a 1996 book of poems by Dorothy Parker which had not been published in the three volumes of poetry assembled by Parker.  He sued when Penguin Putnam issued a collection intended to be Parker’s complete work, which meant those items Parker selected as well as those unpublished in book form until Silverstein’s compilation.  The Appeals court ruled against Silverstein, for “Silverstein holds no copyright in the poems themselves; Penguin has not used Silverstein’s arrangement; and the chief principle of Silverstein’s selection—that the poems previously had not been collected—reflects an exercise of judgment by Mrs. Parker, not by Silverstein.”

Nonetheless, in the one area where Silverstein did not merely “mine” Parker’s backlog but actively sifted it, he did have rights: “Silverstein claims to have made 600 copy edits, mainly changes in punctuation, capitalization, indentation, and titling, in order to standardize the text.  The district court did not conclude that these emendations were entitled to copyright protection, and Silverstein reasserts infringement of these aspects on appeal.”  (The Appeals court “remand[ed] the case for further proceedings”, of which none is reported to have occurred as of the end of 2005.)

(A more thorough summary of this case is under compilations.)


 

Cases Summarized in Other Sections

Alva Studios, Inc. vs Robert Winninger, dba Wynn’s Warehouse, and Austin Productions, Inc (launch this) judged whether one company’s reduced-scale reproduction of a (public domain) Ronin sculpture was entitled to protection against a rival reproduction.

American Code Co. vs Bensinger et al (launch this) had one American company reproducing a public-domain foreign work but with that American company’s new formatting and technical code, then a second American company reproducing the edition made by the first American company.

Maljack Productions, Inc., and Batjac Productions, Inc., vs UAV Corp. (launch this) decided that a pan-and-scan version of a public-domain movie did have enough originality to be entitled to copyright.

Time Incorporated vs Bernard Geis Associates, et al. (launch this) determined that the Zapruder film was sufficiently creative to warrant copyright protection (even though the event of President Kennedy’s death which his film recorded was not in itself copyrightable).

Other Information

 

The Supreme Court has long held that “copyright rewards originality, not effort.”  Here a parallel can be gleaned in decisions of 1918 and 1991:

“Decisions of this Court applying the 1909 Act make clear that the statute did not permit the ‘sweat of the brow’ approach. The best example is International News Service v. Associated Press, 248 U.S. 215 (1918).  In that decision, the Court stated unambiguously that the 1909 Act conferred copyright protection only on those elements of a work that were original to the author.  International News Service had conceded taking news reported by Associated Press and publishing it in its own newspapers.  Recognizing that [§]5 of the Act specifically mentioned ‘[p]eriodicals, including newspapers,’ 5(b), the Court acknowledged that news articles were copyrightable. Id., at 234.  It flatly rejected, however, the notion that the copyright in an article extended to the factual information it contained: ‘[T]he news element — the information respecting current events contained in the literary production — is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.’”  (Quoted from the Supreme Court decision Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (3-27-1991).  Full summaries of both cases are above.)


 

Several court opinions have quoted with approval this interpretation of the law (which references a play by William Shakespeare):

“If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.  These would be no more than Shakespeare’s ‘ideas’ in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species.  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.”  (Anne Nichols v. Universal Pictures Corporation, Carl Laemmle and Harry Pollard, 2nd Cir. (1930), 45 F.2d 119 at 121.)


The creator of this web site knows what it is to exert effort on content without being able to copyright the results of the particular tasks.  What is obvious to visitors to this web page is that it contains images of copyright registration forms as completed by copyright applicants.  What is not obvious is that some of these images have been extensively tweaked to make them legible and clean.  Members of the public are not allowed by the Library of Congress to examine or handle the original paper registrations once they have been microfilmed.  Enlargements made from microfilm are marred by streaks, soft-contrast areas, bends, scratches and specks.  I labored upwards of an hour on some images in adjusting the contrast, straightening lines, replacing missing sections of broken lettering, and eliminating gunk, hairlines, and dust spots.  The reason for some images on this web site having been reproduced strictly in extremes of black and white (without gray scale) is that by forcing the dark grays to become solid black, these hues came to match the nearby darker shades, and the photographic-defect waterspot streaks were made to disappear.  The images remain essentially reproductions of what have always been public documents.  My actions in correcting the blemishes merely reversed the flaws in the copies to bring about an image which any visitor to the Copyright Office could see and copy for himself and which I have no exclusive rights to.

(It remains the case that my selection of documents is an expression of my judgment, and thus is sufficiently original to warrant copyright as a compilation.)

 

 

 

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