Subject Matter

 
 

There are eight categories of works that may be copyrighted:

(1) literary;

(2) musical;

(3) dramatic;

(4) pantomimes and choreographic;

(5) pictorial, graphic, and sculptural;

(6) motion pictures and other audiovisual;

(7) sound recordings; and

(8) architectural.

Categories of Works
Idea-Expression Dichotomy

Ideas that underlie expression may not be copyrighted.  Ideas represent an abstraction of the actual expression.  The line between unprotected ideas and protected expression is determined on a case-by-case basis.  Creative expression is given greater protection.

Ideas

The scènes à faire doctrine examines the practicality of copyrighting incidents, characters, or settings in treating a particular topic.  If such aspects of a topic are practically indispensable to its treatment, they are not copyrightable.

Scènes à Faire

Where an idea can be expressed in only one way, the idea merges in the expression.  As a result, that expression is ineligible for copyright protection.

Merger
Useful Articles

Useful articles are objects that do not have a primary function of portraying their own appearance or conveying information.  Useful articles cannot be copyrighted if their aesthetic features cannot be identified separately from their utilitarian aspects.

In applying the useful article doctrine, courts examine the conceptual separability of a work: are the aesthetic features conceptually separable from its utilitarian aspects?  Courts consider whether the design could be achieved through alternative means, whether the market recognizes aesthetic value, and whether utilitarian objectives influenced the design process.

Conceptual Separability
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

.

 
 
 
 
Answers

Question 3

Adam creates a western movie, Cowboys of the West. The setting takes place in an Western-style town during the mid 1800s; the protagonist is a cowboy and the antagonist is an evil villain; the cowboy rides a fast horse, wears a six-shooter pistol around his waist, protects citizens from evil villains, and has a sidekick who helps fight crime; the villain wears a dark mask and robs banks, harassing innocent townspeople.
 

Question: Does Adam hold a copyright in these elements of Cowboys of the West?

Question 4

Recall the facts from Question 3. In creating the sidekick for the cowboy protagonist, Adam uses a character named Mosavu. Mosavu’s character is well developed in Cowboys of the West. He is an overweight old man who has an amputated arm, and he is extremely loyal to the cowboy protagonist.

Question: Is Mosavu a copyrightable element in Cowboys of the West?

Answer to Question 1

Two. Arthur holds a copyright in the musical work, manifested in the composition, and he also holds a copyright in the sound recording.

Answer to Question 2

Becky does not hold a copyright on the procedure. Procedures are essentially ideas that underlie expression, and they may not be copyrighted. Becky may hold a copyright on her expression of the procedure, but only if the merger doctrine does not apply. With respect to the merger doctrine, if there is only one practical way to describe the procedure, Becky may not hold a copyright on even the expression of the procedure. Moreover, Jared is careful not to use the same expression as Becky used. So arguably he has not copied any protected expression. That said, often copyright protects more content than the actual expression used. However, in this situation it is doubtful that Becky would receive greater protection, if any at all, than the actual expression used because the content of the expression is not creative in nature—it is a procedure for time management.

Answer to Question 3

No. The scènes à faire doctrine allows copying of incidents, characters or settings which, as a practical matter, are standard in the treatment of a given topic. Here, the listed elements of Cowboys of the West appear to be standard in the treatment of a Western cowboy movie. Adam does not have a copyright on the listed elements.

Answer to Question 4

Yes. Characters can be sufficiently original to merit copyright protection. Here, Mosavu has distinct physical characteristics (overweight, amputated arm). He is sufficiently delineated so as to be recognizable as the same character were he to appear in Adam’s movie. Finally, Mosavu is especially distinctive given his name, appearance, and character development; he is not a mere stock character. Mosavu’s character would receive copyright protection.

Question 5

Lincoln creates a wooden rocking horse as a toy for his three-year-old daughter.


Question: Does the rocking horse receive copyright protection?

Answer to Question 5

It depends. The useful article doctrine may preclude copyright protection. We must first decide the purpose of the horse—is it to portray its own appearance, to provide play for a child, or to rock a child like a horse? From the perspective of the child, the former purpose seems correct: the rocking horse’s purpose is to portray a horse, for that is why the child plays with it, i.e., it looks like a horse. Under this purpose, the rocking horse is not a useful article, so the useful-article doctrine would not preclude copyright protection.
 

On the other hand, the purpose could be to provide play for a child. From the perspective of a parent (who purchases the toy), this seems correct: the rocking horse serve to keep the child entertained. Under this purpose, another inquiry is necessary: we must decide whether the aesthetic elements of the horse’s appearance are conceptually separable from the function of providing play.


On the question of conceptual separability, it is arguable that the aesthetic is inseparable from the functional: the horse provides play only because of its appearance as a horse. Moreover, the design of the horse was made specifically to further that purpose of providing play. Under this analysis, the useful-article doctrine would bar copyright protection.
 

It is also arguable, however, that the aesthetic is separable from the function. The function of providing play for a child may simply depend on the rocking base of the horse: perhaps if the wooden base rocks, the child will play. If that is the case, then the appearance of the horse does seem separable from the rocking base. Under this analysis, the useful-article doctrine would not bar copyright protection.

The third possible purpose of the rocking horse is to rock a child like a horse. This purpose would require an analysis of whether the aesthetic is conceptually separable from the functional. As already mentioned, the rocking base is distinct from the horse shape, so the two elements are conceptually separable.

 
 
 
 
 
 
 
 
 
 
Practice Problems

Question 1

Arthur composes a song and then records it.


Question: How many copyrights does Arthur hold in the song?

Question 2

Becky creates an effective procedure for organizing time. She publishes a book that explains the procedure in great detail. Hundreds of people purchase her book and implement the procedure, most all of whom discover great success in managing their time. One of the book purchasers, Jared, decides to publish his own book on time management. He uses the very same procedure that Becky describes in her book, but he is careful to use different expression.


Question: Does Becky hold a copyright in the procedure, such that Jared would be infringing?