Mbu 2520 spring 2018 chapter 3

MBU 2520 Spring 2018 - Eric M. Griffin
WHAT can be protected by
Copyright?

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Categories of Copyrightable Works
Section 102(a) includes 8 specific categories:
Literary works
Musical works*
Dramatic works
Pantomimes and choreographic works
Pictorial, graphic, and sculpture works
Motion pictures and other audio visual works
Sound recordings*
Architectural works
not necessarily the only categories of copyrightable works.
*During this semester, our focus will be Musical Works and Sound Recordings

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Categories of Copyrightable Works
The US has a very broad definition of authorship.
Generally all forms of literary, musical, visual, and artistic works can be
protected by © if they meet some requirements.
© protection is NOT based on any asthetic consideration of value of the work.

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Three basic requirements for a work to be
capable of copyright protection:
Originality
Expression
Fixation
Section 102(a): Original works of authorship fixed in any tangible
medium of expression, now or later developed, from which they can be
perceived, reproduced or otherwise communicated, either directly or
with the aid of a machine or device

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Originality
How original does a work have to be in order to be entitled
to copyright protection?
• Is not defined by the Copyright Act – Congress
decided to let the courts establish standards
• Requires “Independent Creation”
• Doesn’t require any measure of novelty, ingenuity
or aesthetic merit
• Only requires a minimal amount of creativity (low
for creative works / higher for factual and
functional works due to limited variability)

“Originality” -
ZZ Top v Chrysler
54 F. Supp. 2d 983 (W.D. Wa. 1999)
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• ZZ Top sued Chrysler for using the sound recording of their song La Grange in a
commercial
• Chrysler says that La Grange is substantially similar to that used in earlier musical
compositions, such as John Lee Hooker's Boogie Chillen and Norman
Greenbaum's Spirit in the Sky , so it is not original and the lack of originality
invalidates the song's copyright.
• The Court holds that while the riff itself was not protected, the manner in which ZZ
Top and Norman Greenbaum expressed the common idea of the riff in La Grange
and Spirit in the Sky is not substantially similar even though the differences are
minimal . The similarities between the two works extend beyond the guitar riff
that ZZ Top, in turn, had copied from earlier works, and include guitar solos and
words. (The test for substantial similarity is whether the difference between the new
work and the preexisting work is non-trivial.)

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Expression
17 USC 102(b): Copyright protection does not extend to any idea, procedure,
process , system, method of operation, concept, principal or discovery.
Distinguishing between an idea and an expression of an idea
Ideas not protectable but an original expression of an idea is protectable
Ideas free for use by all = encourages production of greatest number of works
• Not copyrightable in books = plot, settings, stock character
• Not copyrightable in two or three dimensional art = colors, shapes
• Not copyrightable in music = song’s theme, individual words, notes,
short musical phrases, rhythm, harmony

. Fixation
“A work be embodied (fixed) in some tangible medium”
Does not matter what the form, manner, or method of fixation may be— words,
numbers, notes, sounds, pictures, or any other graphic or symbolic indicia— as long
as it is embodied in a physical object.
Why? It would be very difficult to prove the existence of the work otherwise.

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MUSCIAL WORKS
Musical Works are a combination of:
Melody: consists of the musical notes, the duration of these notes, and the
order or arrangement of notes.
Harmony: the structure, progression, and relation of chords.
will rarely be sufficiently original to be copyrightable on its own.
Rhythm: a regular pattern formed by a series of notes of differing duration
and stress.
OPTIONALLY: Lyrics

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Fixation Requirement for Musical Works ( “tangible medium”)
• Under 1909 Act, musical work had to be “fixed” in a “readable” form (by man or by device or machine)
• Under the 1976 Act, musical composition may be fixed in either copies or phonorecords:
• A musical composition would be copyrightable if it is written or recorded in words or any kind of visible
notation, in Braille, on a phonograph disk, on a film sound track, on magnetic tape, or on punch cards.
• Does not matter what the form, manner, or method of fixation may be— words, numbers, notes, sounds,
pictures, or any other graphic or symbolic indicia— as long as it is embodied in a physical object.
Phonorecord: Material object that embodies sounds (other than those accompanying audio-visual recordings
such as movies).
Copies: Everything other than phonorecords.

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MUSICAL WORKS
Combination of melody, harmony and rhythm & sometimes lyrics
SECTION 102(a)(2) says that musical works include accompany words (if any)
Originality and Expression Requirements for MusicalWorks:
Lyrics: copyrightable by themselves ONLY IF they contain original expression.
CASE: O’BRIEN v. CHAPPELL & CO. (“I’ve GrownAccustomed toYour Face”)
Use of the phrase “night and noon” is not an infringement because the phrase
is not original enough to be protected
It is well established that copyright protection does not extend to words or
phrases isolated from their context.

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Acuff-Rose v. Jostens
988 F. Supp. 289 (S.D.N.Y. 1997)
Acuff-Rose alleged that Jostens infringed upon its copyrighted song “You’ve
Got to Stand for Something” by Aaron Tippon.
Court held that Jostens was not guilty of infringement because the lyrics
involved lacked the requisite originality, even though it was clearly copied.
“You’ve Got to Stand for Something”

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Melody: consists of the musical notes, the duration of these notes, and the order or arrangement of
notes. A pleasing succession of arrangement of sounds.
Smith v. George E. Muehlebach Brewing Co.,
TicTocTicTocTime for Muehlebach is not copyrightable.According to the court, if all a composer
does is “add a mechanical application of sound to a word that is itself not copyrightable, and adds the
same to a descriptive phrase (Time for Muehlebach) already dedicated to the public domain, without the
use of even the most simple harmonious chords, he has no musical composition subject to copyright.
copyright law does not provide any strict rule to determine how long or creative a melody must be in
order to be copyrightable. 6 bar rule?
Harmony: the structure, progression, and relation of chords.
-will rarely be sufficiently original to be copyrightable on its own, but can contribute.
Rhythm: a regular pattern formed by a series of notes of differing duration and stress.
-will rarely be sufficiently original to be copyrightable on its own.

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White-Smith Music Publishing Co. v.
Apollo Co.
209 U.S. 1 (1908)

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White-Smith Music Publishing Co. v.
Apollo Co.
209 U.S. 1 (1908)
•SCOTUS held that piano rolls were not copies because the
musical compositions could not be visually perceived by looking
at the rolls:
It may be true that the use of these perforated rolls, in the
absence of statutory protection, enables the manufacturers to
enjoy the use of musical compositions [without paying a royalty].
[But it is up to] the legislative [to fix this] and not to the judicial
branch of the Government. [It is our opinion that the current
language] does not include [piano rolls ] as copies of the
copyrighted musical works.

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DEFINITION OF SOUND RECORDINGS: Works that result from the fixation of a series
of musical, spoken or other sounds, but not including the sounds accompanying a
motion picture or other audiovisual work, regardless of the nature of the material
objects, such as disks, tapes, or other phonorecords, in which they are embodied.
∙ Sound Recording are separate and distinct from the underlying musical, literary,
or dramatic works whose performance may be contained on the recording.
 The copyright in the sound recording covers the rendition or performance of the
musical composition rather than the composition itself.
 The copyright in the musical composition covers the sequence of musical notes
and phrases, lyrics, and rhythm.

Sound Recordings are not restricted to musical
works
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Songs of the Humpback Whale

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Extended protections to sound recordings
created on and after February 15, 1972
o Sound recordings fixed before February 15, 1972, although not protected under federal
copyright law, may be protected under state statutory and common law.
o Section 114( b) of the Copyright Act is that the reproduction right in sound recordings is
limited to works “that directly or indirectly recapture the actual sounds fixed in the recording.”
In other words, the copyright in a sound recording only protects against actual copying of the
recorded sounds and not against imitation of those sounds.
o (Section 301(c)): any rights or remedies under the common law or statutes of any State shall not
be annulled or limited by this title until February 15, 2067
o An “imitation of those sounds” is best know as what? Who controls those rights?

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Extended protections to sound recordings
created on and after February 15, 1972
o An “imitation of a sound recording” is best know as what?
o Who controls those rights?

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LITERARY WORKS: Works, other than audiovisual works, expressed in words, numbers, or other
verbal or numerical symbols or indicia, regardless of the nature of the material objects in which they are
embodied.
• No individual words or ideas are copyrightable in and of themselves. Accordingly, copyright does not
protect a literary work’s theme, general plot, factual information, or other common elements and
ideas.
• If a person paraphrases the work, he will still be liable for infringement if the paraphrase is based
upon the work’s expression rather than just its underlying ideas.
DRAMATIC WORKS: Works that tell a story through action, dialog, and narration.
dramatic works, including any accompanying music,” may be copyrightable works.
Tells a story through action, dialog, and narration.
Can overlap with other types of protected works – Literary ,Pantomimes or choreography, Motion
picture, Musical works

.PANTOMIMES: Works comprise a drama presented by gestures and action without words.
expressed by movement (such as dance) or physical attitudes and are usually fixed on videotape or film.
● Pantomimes comprise a drama presented by gestures and action without words
CHOREOGRAPHIC WORKS: Works that consist of recorded or notated movements of a dancer.
PICTORIAL, GRAPHIC AND SCULPTURAL WORKS: Two-dimensional and three-dimensional works of fine,
graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and
technical drawings, including architectural plans.
MOTION PICTURES AND OTHER AUDIOVISUAL WORKS: Works that consist of a series of related images
which are intrinsically intended to be shown by the use of machines or devices, together with accompanying
sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are
embodied.”
● May include other types of copyrighted works, such as musical compositions

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COMPILATIONS:
Works formed by the collection and assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship.
Section 103( b): extends only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and does not imply any
exclusive right in the preexisting material.
Section 103( a): does not extend to any part of the work in which such material has used
unlawfully.
Compilation may also consist of preexisting material that is not protected by copyright.
Elements:
• Collection and assembly of pre-existing material, facts, or data.
• Selection, coordination, and arrangement of those materials.
• Creation, through the selection, coordination, and arrangement, of an original work of authorship.

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Feist Publications, Inc. v. Rural Telephone Service Co.
499 U.S. 340 (1991)
▪ SCOTUS (reversing the decision of lower courts based on “sweat of the brow”)
held that although Feist copied Rural’s listings, those listings were not
copyrightable.
▪ The reasoning for its decision was based on the rule that facts such as names
and telephone numbers are not original and therefore not copyrightable.
▪Facts are discovered, while compilations of facts are created.
▪ The standard for creativity is extremely low. It need not be novel, rather it only
needs to possess a "spark" or "minimal degree" of creativity to be protected by
copyright.
▪Almanacs, catalogues, and other databases are also examples of fact compilations.

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Consolidated Music Publishers, Inc. v. Ashley Publications (1961)
• The plaintiff’s compilation was originally published in 1956 and contained 142
compositions.
• The defendant’s compilation was published in 1961 and contained 83 compositions, 29 of
which were contained in the plaintiff’s compilation. Both compilations consisted entirely of
public domain musical compositions.
Court held that the defendant was guilty of infringement because it utilized the same titles arbitrarily chosen by
the plaintiff for several compositions, duplicated a selection already in its book under a different title, misspelled
an author’s name in the same manner as the plaintiff, and repeated another notational error made by the
plaintiff.
Does not mean that no one else can create a compilation using the same compositions.
Does mean that one cannot merely copy parts of the plaintiff’s compilation that
exhibit originality and are therefore copyrightable.This includes groupings, etc.

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COLLECTIVE WORKS
A type of compilation and is defined as “a work, such as a periodical issue,
anthology, or encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective whole.
Authorship of the collective work as a whole includes the elements of revising,
editing, compiling, and similar authorship that went into putting the work into final
form.
A compilation may also be a collective work when it is created by selecting and
arranging copyrighted works into a new single work, such as a book of poetry, or
book of short stories, a magazine, or newspaper
Edgerton v. UPI Holdings, Inc. (K-Swift) 2010
Court quotes Feist in holding that mixes were copyrightable

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WHAT IS NOT PROTECTED BY COPYRIGHT LAW?
• Works in Public Domain
• Ideas
• Facts
• Names,Titles, Slogans, Short Phrases
• Unfixed works –Why? (Bootleggers?)
• Works of the US Government (federal govt only … not state govt)

Mbu 2520 spring 2018 chapter 3

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