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Author: Kenneth W. Golish

Dated: October 29, 1991

Copyright 1991 Kenneth W. Golish

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In light of the recent Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the author examines the basis for copyrightability of photographs and film. He argues that if the creativity requirement set forth by the Court is controlling, photographic works and the like are now subject to scrutiny. This paper suggests this must be wrong, that the true Constitutional basis for copyright is uniqueness, a quality not synonymous with creativity.

Being There: Re-examining Copyright Originality for Photographs and Motion Picture Films After Feist

1. Introduction

In the March of 1991, a young male by the name of Rodney King became famous. His fame did not come simply from the encounter he had with officers of the Los Angeles Police Department. Such confrontations are perhaps all too common. These circumstances were unique because someone, trying out a new video camera, happened to be there. George Holliday, a plumbing company manager, recorded the event from his second floor balcony.(1) Later, the entire nation saw again and again, in newscast after newscast, the disturbing circumstances unfold. The result may eventually affect several aspects of police work in Los Angeles and elsewhere.

The power of photography and film is not to be doubted. While the picture camera has been a household item for years, more recently a relatively inexpensive technology has made film-makers of many.(2) For most users, the video camera is for home entertainment. Still, it has also become a device for private individuals to participate in the news-gathering process. Once in a while, one of these photographers will capture on film or tape an event which will be of interest to a larger audience.

When John Kennedy was shot in Dallas on a Friday afternoon, an 8 mm camera captured some of the scene. The footage ended up being the subject of a copyright dispute. See Time Inc. v. Bernard Geis Associates.(3) The events which led to the decision in Geis were perhaps more common to a period a generation later. The 8 mm camera in 1963 was not as ordinary an appliance as the video camera is today.(4) Now, more than ever, amateur recording and picture-taking raise some interesting, if perhaps only theoretical, copyright issues.(5) These include the fair use doctrine(6) and originality. The subject of this paper, however, is limited to originality in light of the 1991 decision by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc.(7)

Feist answered the question of whether copyright could subsist in the white pages of a telephone directory. In an opinion written by Justice O'Connor,(8) a unanimous court determined that such a directory--an alphabetic listing of names, addresses and telephone numbers--is not original enough to enjoy copyright protection.(9) Because the Supreme Court rarely deals with copyright issues, most of the caselaw emanates from the lower federal courts. Some of these cases, even some fairly old ones, now require a second look. Of course, while Feist answers a question debated by copyright scholars for a long time, others remain. For photographs and film, what level of originality is necessary for a work to be copyright?

The Court decided in Feist that originality requires some level of creativity and that this has always been necessary for copyright protection. Copyright cannot subsist in the mere ordering of facts unless that ordering is original in itself. To photographs and film, we may now ask, how does this decision apply? If this kind of originality is what copyright requires, where is the creativity in a photographer, video or still, amateur or professional, capturing on film, what is there for others to view? Does the mere act of the photographer being there entitle him or her to copyright protection for such a work product?

Photography, the Constitution and Copyright

In 1787, perhaps not even Benjamin Franklin had any notion of the concept of photography.(10) Copyright--call it the protection of authors and their writings--formerly the province of the colonies, became a matter for Congress. The Constitution's Article I, § 8, cl. 8 (the patent-copyright clause), authorized Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Following this grant of power, Congress has since never purported to enact copyright legislation pursuant to any other authority. So writings of authors, whatever may have been its meaning in 1790, came to include such works as photographs and film.

The Promotion of Arts and Science

One aspect of the patent-copyright clause is the notion that the grant is based on the necessity of the promoting the useful arts and sciences. Discussing this in a patent infringement action, Graham v. John Deere Company of Kansas City,(11) Justice Clark said:

The clause is both a grant of power and a limitation. This qualified authority, unlike the power often exercised in the sixteenth and seventeenth centuries by the English Crown, is limited to the promotion of the "useful arts."(12)

Justice Clark made particular note of the views of Thomas Jefferson, who as Secretary of State, was one of the two persons first entitled to issue patents.(13) "Jefferson," wrote Clark, "like other Americans, had an instinctive aversion to monopolies."(14) Nonetheless, Jefferson did agree that for certain purposes and only for a limited terms of years, "Monopolies may be allowed to persons for their own productions in literature, & their own inventions in the arts..."(15)

These principles suggest further that American copyright does not recognize that authors have any natural rights in their works. In Sony Corp. v. Universal City Studios, Inc. the Court said:

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.(16)

The Court also found support for this proposition in United States v. Paramount Pictures:(17)

The copyright law, like the patent statute, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.(18)

2. Historical Considerations of Copyright and the Constitution

The Supreme Court in Feist affirmed that originality is a Constitutional requirement for copyright protection.(19) Ignoring other authority, Justice O'Connor placed particular reliance on two precedents: the 1879 Trade-Mark Cases(20) and the 1884 decision in Burrow-Giles Lithographic Co. v. Sarony.(21) Both rulings reviewed the Constitution's grant of copyright power to the federal government.

Congress passed its first copyright bill in 1790.(22) A virtual copy of the original English legislation found in the 1710 Statute of Anne,(23) the bill recognized copyright in only maps, charts and books.(24) Numerous later revisions expanded the list of enumerated works.(25) Photographs first received protection by an act of March 3, 1865.(26)

It took almost a century for the Supreme Court to make a major statement on the patent-copyright clause. That came in the Trade-Mark Cases. In an opinion authored by Justice Miller, the Court refused to uphold three criminal convictions for trade-mark violations under federal law. The legislation creating those offences was passed together with certain patent and copyright enactments and established a national trade-mark registration system. Because trade-mark law was a creature of the Common Law, the Court decided that Congress had no authority to enact the disputed provisions:

The ordinary trade-mark has no necessary relation to invention or discovery. The trade-mark recognized by the common law is generally the growth of a considerable period of use, rather than sudden invention. It is often the result of accident rather than design, and when under the Act of Congress it is sought to establish it by registration, neither originality, invention, discovery, science or art is in any way essential to the right conferred by that Act...The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings and the like.(27)

What intellectual labor could be protected was soon answered in an opinion of the same Justice five years later in Burrow-Giles.

Oscar Wilde: "A picturesque subject indeed!" cried little Sarony.

After the Civil War, New York photographer Napoleon Sarony became popular for his portraits of people in the theater and arts.(29) A photograph of Oscar Wilde, taken by Sarony in January 1882,(30) fell into the hands of the defendant lithographic company. Burrow-Giles reproduced it and sold 85,000 copies.(31) Outraged by this piracy, Sarony sued and won, but the defendant appealed to the Supreme Court. In Burrow-Giles Lithographic Co. v. Sarony, the appellant challenged the authority of Congress to grant copyright in photographs because, so the argument went, a photograph was not a writing of an author.(32) However, without deciding whether any photograph could be protected, the picture of Wilde counted as a writing because it was the "product of plaintiff's intellectual invention."(33) It was so because it comprised the selection of costume and background materials and lighting, together with posing the subject.

Number 18 photograph of Oscar Wilde by Sarony

The 19th Century Debate--Photography As Art

It is helpful to go back to the circuit court decision in Sarony.(34) The decision quotes extensively from Pouillet's Propriete Litteraire et Artistique.(35) The document highlights the arguments prevalent in France and no doubt elsewhere concerning the merit in granting copyright to photographs. Three alternative theories for copyright protection were proposed. The first suggested that photographs, because they are produced entirely by technological means, ought not be protected at all:

On the one hand, the painter continues his work; his intelligence directs his hand; he corrects his first thought, he modifies it, he perfects it, and up to the last moment he impresses on it the stamp of his own personality. On the other hand, the photographer erects his apparatus, he thenceforth remains a complete stranger to what is taking place; light does its work: a splendid but independent agent has accomplished all. The man may disappear at the beginning of the operation; it will, nevertheless, be performed without the assistance of his intelligence or his mind; his personality will be lacking to the product at the only time in which, according to the spirit of the law, this personality could afford him any protection.(36)

The second argument proposed that protection ought to be afforded on the same basis as paintings, that is, without regard to artistic merit. Any photograph still requires effort, both physical and mental. French naturalist Louis Figuier put it this way:

Until now, the artist has had the brush, the pencil and the burin, now, in addition, he has the photographic lens. The lens is an instrument like the pencil and the brush, and photography is a process like engraving and drawing, for what makes an artist is not the process but the feeling.(37)

Thus, the process didn't matter, only the creation of art. So this was said of the French copyright law of 1793:

Thus it has been adjudged, in this sense, that photographic images are pictures. Whatever may be their aesthetic value,--however great may have been the part played by the agents pressed into his service by the operator,--it is certain that there yet remains to him an important part: he determines the aspect under which the subject of the picture is to be presented to the luminous ray; he disposes the lines, and gives evidence, in a certain measure, of taste, of discernment, of skill. The work which, without the exercise of these various faculties, would not be brought forth, may thus be justly called a work of the mind, and protected on this ground by the law...(38)

The third theory offered in Pouillet suggested leaving to the judgment of courts the question of the artistic merit of photographs on a case-by-case basis. However, this theory once offered was quickly rejected. Either grant to all or none. "Outside of that there is only room for arbitrariness, and, consequently, for danger, as well for the judge as for the litigant."(39)

It is not clear which view the circuit court accepted. The court only rejected the first. Similarly, the Supreme Court did not give an opinion broader than necessary. The argument put to the Court was that photography was a matter of science, not art, and "simply the manual operation...of transferring to the plate the visible representation of some existing object, the accuracy of this representation being its highest merit."(40) To which Justice Miller answered: "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."(41)

3. The Camera in America

In 1885, Sarony was at the height of his career, well-regarded by his contemporaries for having made photography a genuine art.(42) If a photograph by N. Sarony was not entitled to copyright protection, then none other could make that claim. While Justice Miller may or may not have appreciated Sarony's reputation, no doubt the Court recognized the impact its decision might have on the profession. The camera was not a household item. Sarony had much at stake; his studio was filled with costly equipment and elaborate costumes and fabrics. Other expenses were considerable too.(43) If anyone could pirate his work with impunity, perhaps Sarony might have been wise to look for some other calling.

Photography was not the exclusive reserve of professionals.(44) However, not until George Eastman introduced the Kodak in 1888 was it possible for a person of modest means to become a photographer.(45) The No. 18 photograph of Oscar Wilde was therefore nothing out of the ordinary in the sense that not anyone could have shot a similar picture. Still, while being a photographer was beyond the reach of most people, the product of this new science was not. Although early photographers, like many painters, limited their work to private portraiture,(46) the 1850's saw the popularization of the carte-de-visite.(47) Famous works of art, as well as portraits of celebrities and working people alike, were produced on hand-sized cards in large quantities and sold at affordable prices. Given the popularity of the carte, the potential profit for the original photographer and pirate alike was significant.(48)

Relatively few were employed in photography; fewer produced celebrity portraits. Yet these works were available for many to enjoy. Perhaps then it is not difficult to guess at what motivated the Court in giving Sarony, the artist, his due, while punishing the pirate, Burrow-Giles.

In over 100 years, photography and now film-making have changed. While it may be difficult to deny copyright to the professional photographer working in the studio, in the field or the dark room, the same cannot be said of the amateur. If Burrow-Giles saw a potential division between copyrightable and uncopyrightable photographs, today's technology-made-simple must make the split even more pronounced. So what is the answer? What rule that doesn't offend the Constitution ought to apply?

4. Bleistein Ignored

Perhaps a good answer lies in another Supreme Court decision on the subject of originality. In the 1903 Bleistein v. Donaldson Lithographing Co,(49) Justice Holmes found that an illustrated circus advertisement could enjoy copyright. The case is often remembered for the holding that the commercial character of a work does not deprive it of copyright.(50) However, the decision also gives some important incite into originality. It is interesting to contrast Bleistein with Feist; Feist only mentions Bleistein in passing.(51) While Feist, following the Trade-Mark Cases and Burrow-Giles, speaks of the need for creativity, however modest, Bleistein only refers to uniqueness. "The copy," speaking of the poster, says Holmes:

is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has something irreducible, which is one man's alone.(52)

Sharply in contrast to the Trade-Mark Cases, Holmes's view made originality depend on the author's original contribution, his personal stamp, not on intellectual labor. For Holmes, making artistic judgments was not a suitable approach because it risked leaving works of genius unprotected.(53)

Copyright in Motion Pictures and Photographs After the Turn of the Century

After Bleistein, there appeared little doubt about the copyrightability of photographs and motion picture films. Congress gave motion pictures copyright protection in 1912,(54) although motion picture films were probably already protected as photographs.(55) No cases challenged the copyrightability of films. Still, two cases on photographs are noteworthy, if perhaps only historically. However, except to suggest that anyone is free to photograph the same subject matter, they do not attempt to fashion any rules for considering originality. In Pagano v. Charles Beseler Co.,(56) the court held a photograph of a simple street scene copyrightable:

It undoubtedly requires originality to determine when to take the photograph, so as to bring out the proper setting...with adjunctive features of light, shade, position, etc. The photograph in question is admirable. The photographer caught the men and women in not merely lifelike, but artistic, positions...(57)

This photograph would likely have met any standard of originality. More interesting is Gross v. Seligman.(58) A photographer, after selling the rights to a photograph of a nude woman he had taken two years earlier, used the same model in similar pose for another picture. Although the two poses were not identical, the similarities were striking enough that the court found infringement.

Jewelers' Circular

In 1922, a Second Circuit case concerned the copyrightability of a directory of jewelers' trade-marks. Many of the trade-mark illustrations were reproduced photographically. Jewelers' Circular Pub. Co v. Keystone.,(59) was not the first to uphold the copyrightability of directories.(60) Neither was it the last for in Leon v. Pacific Telephone and Telegraph Co.,(61) telephone white pages received protection. Jewelers' Circular Pub. is interesting for the commentary on photographs by District Judge Learned Hand:

Burrow-Giles...left open an intimation that some photographs might not be protected...I think that, even as to these, Bleistein...rules, because no photograph however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike. Moreover, this all seems to me quite beside the point, because under § 5(j) photographs are protected, without regard to the degree of "personality" which enters into them. At least there has been no case since 1909 in which that has been held to be a condition. The suggestion that the Constitution might not include all photographs seems to me overstrained.(62)

According to Nimmer,(63) Judge Hand's views have prevailed; any photograph may claim the requisite originality and qualify for copyright.(64)

The Zapruder Film

One of the cases in which this view persists is Time Inc. v. Bernard Geis Associates.(65) Abraham Zapruder, president of a Dallas garment firm, happened to be on a grassy knoll with an 8 mm camera and telephoto lens when President Kennedy was shot.(66) Zapruder later sold his short film of the assassination to the publishers of Life magazine.(67) When sketches made using the film were later reproduced in a book on the assassination, the publishers sued for copyright infringement.

Time Inc. v. Bernard Geis Associates held that no infringement occurred because the fair use doctrine permitted the copying. However, Judge Wyatt still found originality in the film. Moreover, he concluded that sketching individual frames was potentially as culpable as any other method of reproduction.(68)

According to the judge's reading of the then current Copyright Act, "Congress has expressly made photographs the subject of copyright, without any limitation."(69) Drawing on the line of cases from Burrow-Giles, Bleistein and Jewelers' Circular, he formulated what may be described as a per se rule of copyrightability for photographs and film. In doing so, he quoted Judge Hand in Jewelers' Circular, who read Bleistein to mean that no photograph "can be unaffected by the personal influence of the author."(70) Accordingly, photographs enjoyed protection regardless.

5. From Geis to Feist

Jewelers' Circular and Geis were decided under the 1909 Copyright Act. After years of studies and hearings, Congress passed a new act in 1976.(71) Neither act made its enumerated categories exclusive. However, where the old act listed works by medium, the 1976 legislation attempted to classify works according to the nature of their authorship.(72) Some fourteen classes of works were protected under § 5 of the 1909 Act:(73)

a) Books, including composite and cyclopedic works, directories, gazetteers, and other compilations.


j) Photographs.


l) Motion-picture photoplays.

m) Motion pictures other than photoplays.

n)(74) Sound recordings.

In contrast, § 102(a) of the 1976 Act now gives copyright protection to "original works of authorship fixed in any tangible form." According to the definitions in § 101, a work may be fixed in any tangible medium which suffices as a copy or in a phonerecord. Section 102(a) contains seven broad categories of works:

1) literary works;

2) musical works, including any accompanying words;

3) dramatic works, including any accompanying music;

4) pantomimes and choreographic works;

5) pictorial, graphic and sculptural works; [defined in § 101 to include photographs;]

6) motion pictures and other audiovisuals works; [defined in § 101 to include film and tape;] and

7) sound recordings.

Section 102(b) specifically provides that copyright does not extend to any "idea, procedure, process, system," etc. According to the accompanying House Report,(75) this subsection restates the basic dichotomy between expression and idea.(76)

Feist overrules both Jewelers' Circular and Leon. The Court could have distinguished them because the 1909 Copyright Act named directories as protected works. The Court could also have distinguished those cases because absent from the 1909 Act was any specific originality requirement. However, Justice O'Connor concluded otherwise:

The 1909 Act embodied the originality requirement, but not as clearly as it might have...Section 4 stated that copyright was available to "all the writings of an author." 35 Stat. 1076...Section 3 was similarly ambiguous. It stated the copyright in a work protected only the copyrightable component parts of the work." It thus stated an important principle, but failed to identify the specific characteristic--originality--that determined which component parts of a work were copyrightable and which were not.(77)

Rejecting Sweat of the Brow

In Bleistein, Holmes made the assumption that copyright affords protection for such works as directories. A fortiori more original works such as illustrations are entitled to the same guarantees. Thus Feist left open the possibility that the Holmes view of copyright, being dependant on personality only, is valid. What is not open for discussion after Feist is that the Copyright Act, passed pursuant to the patent-copyright clause, covers those works which rely on the "sweat of the brow" theory. According to William Patry, that doctrine, "seeks to protect the labor and financial investment involved in compiling information, apart from any particular arrangement of information compiled."(78) Circuit Judge Rogers expressed his view of the theory in Jewelers' Circular:

The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number, acquires material of which he is the author. He produces by his labor a meritorious composition, in which he may obtain a copyright, and thus obtain the exclusive right of multiplying copies of his work.(79)

Patry attributes the development of the doctrine to English copyright law.(80) The advance of the theory occurred first in the early 19th century. Later some United States courts adopted it. It therefore became acceptable to protect the mere effort in works such as directories.(81) Perhaps though, this theory had its roots in the first developments of copyright law. The Statute of Anne was, after all, the result of the lobbying efforts of book publishers, not those of any authors' guilds.(82) Although the act for the first time spoke of the rights of authors, it also didn't fail to mention the interests of proprietors.(83) Perhaps the founders of the Constitution were likewise of the view that copyright needed to protect those same interests, notwithstanding only authors and not publishers were named in the clause.(84) Whatever the original framers conceived the patent-copyright clause to be, the first Congress, in simply adopting the Statute of Anne, conceivably had the same conception of copyright as the English.

6. Natural Rights and Copyright

Arguably, the better justification for copyright and patent monopolies lies, not so much in the encouragement of inventive pursuits, but in preventing others from unduly profiting from those endeavors. If an invention or a work of art has value, then that value, absent legal or other protections, will enure to the benefit of others. Those others will be the public or the person who promotes the work; the salesperson, the publisher, manufacturer or distributor. If we assume that even absent incentives, creative people will still produce works of value, then rewarding those endeavors becomes a matter of simple fairness. This is especially so if we expect that the real benefit of such works will profit the promoters rather than the public.

Patry correctly points out that federal copyright is purely a matter of statute,(85) unlike some other countries who recognize it as matter of right.(86) This is not to suggest that natural rights can be ignored in awarding copyright. While arguments for rejecting a natural rights basis for copyright law may be persuasive, it is perhaps impossible to separate those rights from the concept of promoting arts and sciences.(87) In the history of the development of copyright, the two threads are intertwined. Jefferson too could not divorce one from the other as is unmistakable in this passage from a letter to Oliver Evans:

Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time...Nobody wishes more than I do that ingenuity should receive a liberal encouragement.(88)

Even before Jefferson, the same notion is evident in the preamble of the original Statute of Anne, whose stated purpose was for "preventing therefore such Practices [as piracy] for the future, and for the Encouragement of learned Men to compose and write useful books."(89) Again we see it in the language of Justice Stewart, in Twentieth Century Music Corp. v. Aiken:(90)

Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.(91)

If the goal of promoting science and arts is too obscure a concept, it is perhaps simpler to focus on the law's immediate effect. It is not wrong then to consider natural rights issues when shaping the course of copyright. The limitation is that natural rights cannot be claimed for facts or ideas. The framers of the Constitution simply never "intended to confer upon one who might happen to be the first to a historic event the exclusive right for any period to spread the knowledge of it."(92) So Justice O'Connor remarked in Harper & Row Publishers v. Nation Enterprises,(93) that copyright, "is intended to increase and not to impede the harvest of knowledge." None can claim any natural rights to facts or ideas, but expression may be protected by copyright.

Congressional Implementation of the Patent-Copyright Clause

Of course critics will argue that the current copyright law fails to meet its own stated objectives, that in several respects, it does not champion the interests of authors, but promotes the prosperity of publishers and promoters.(94) It is said too that copyright often becomes an instrument that impedes the flow of information. Support of this criticism may be found in the dissent in Harper & Row Publishers v. Nation Enterprises. While the majority held that copying some 300 words of an unpublished manuscript was infringement and not fair use,(95) Justice Brennan urged that the fair use doctrine must protect such copying. He argued that both the First Amendment and the patent-copyright clause dictated such a result, otherwise the majority's decision would serve as an impediment to the flow of information.

Justice Brennan did not propose to scrap copyright law entirely, only to give a broader reading to the fair use doctrine in that particular case. However, the response to such criticisms of current law begins by acknowledging that achieving the objectives of copyright law is not a simple task. It is said too that democracy is a bad form of government, but that all the others are so much worse. Similarly, a system for granting monopoly rights can never be perfect. The law can only act as a carrot and not a stick. Implementing copyright law may involve compromise such that it may not always be apparent that the purposes of copyright protection are served. It is left for Congress to decide how to exercise its mandate.

Based on principles first announced by Justice Marshall in McCulloch v. Maryland,(96) Congress is free to implement the powers granted by the Constitution as long as the ends are legitimate and the means appropriate.(97) Although this deference has most often applied to the commerce clause, there is no reason to believe it is not applicable here. This view finds support in two passages from decisions in the Supreme Court: Firstly, there is this statement in Kalem Co v. Harper Brothers:(98)

It is suggested that to extend the copyright to a case like this is to extend it to the ideas, as distinguished from the words in which those ideas are clothed. But there is no attempt to make a monopoly of the ideas expressed. The law confines itself to a particular, cognate, and well-known form of reproduction. If to that extent a grant of monopoly is thought a proper way to secure the right to the writings, this court cannot say that Congress was wrong.(99)

And in Sony Corp. v. Universal City Studios, Inc. the Court said:

Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.(100)

Congress has taken the mandate of the patent-copyright clause seriously.(101) For instance, to encourage the publication of works, the 1976 Act eliminating all claims to common law copyright.(102) Congress instead made copyright attach at the time of fixation and expire 50 years after the author's death.(103) At the same time, Congress has also tried to place the interests of authors first.(104)

7. What Congress Can Do

If Congress has considerable latitude in implementing the patent-copyright clause, it can restrict protectable works as it chooses.(105) However, this does not mean that Congress cannot establish a prophylactic rule for at least some kinds of works. Arguably, Congress intended such a policy for photographs under the 1909 act. Justice O'Connor says however, that originality was even a requirement under the old act.(106) It is therefore difficult to read into either the current act or the old, any Congressional intent to make a per se rule for photographs and motion picture films. Still, this may not foreclose the possibility that such a rule exists. A passage in the 1976 House Report suggests Congress left the judgment of originality to the judiciary:

The phrase "original works of 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. The standard does not include the requirements of novelty ingenuity, or aesthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.(107)

Looking For a Per Se Rule

The question then remains how to interpret the requirement of originality for photographs, narrowly or otherwise? While Feist may be the latest case on originality, it is not about photographs. Yet Justice O'Connor's opinion intimates that the Court would reject a per se rule for photographs. The Court says that original means creative:

As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true however, that the selection of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist...and anyone who claims infringement must prove "the existence of ...intellectual production, of thought, and conception." Burrow-Giles, supra, 111 U.S., at 59-60, 4 S.Ct., at 281-282.(108)

Justice Brandeis, in his dissenting opinion in International News Service v. Associated Press,(109) also suggests an approach requiring some scrutiny: "The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied protection."(110)

Another conception of this stricter standard is represented by Justice Douglas' dissent in Lee v. Runge,(111) He argues it is wrong to treat copyright on a different footing than patents. The authority of Congress to legislate in both areas is the same, yet patents, he says, require novelty and copyrights do not. "An author's 'Writing' or an inventors 'Discovery' can, in the constitutional sense, only extend to that which is his own,"(112) says Douglas. Still, what an author may claim as his own remains quite broad:

If Johann Spies' Historia von Dr. Johann Fausten, Christopher Marlowe's The Tragical History of Dr. Faustus, Goethe's Faust and all the other countless operatic, symphonic, dramatic and literary versions of the Faustian legend were published today, copyright protection could well be extended to all. "[A] copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea--not the idea itself." Mazer v. Stein, 347 U.S., at 217, 74 S.Ct., at 470. The manner in which the words or musical notes are combined to recount the Faustian legend could well satisfy the constitutional requirement of novelty even though the broad ideas they describe may be part of the public domain.(113)

The standard proposed by these opinions and clearly implied in Feist would result in the rejection of copyright protection for many photographs. Is this correct? Does the Constitution require a work to meet some critical measure to qualify as original?

Taking pictures using a still camera or camcorder may only be a technological rendering of facts, not worthy of recognition. With most photographs, selections of place, time and equipment are not particularly creative. For instance, the photographer who recorded the Rodney King incident happened to have a video camera. The camera was not selected for the occasion. Likewise, the balcony location was not a matter of choice, but the only one immediately available.(114) Finally, while the recording involved some camera movement--panning back and forth and zooming in and out--none of these actions was particularly artistic. This leaves open the prospect that even worthy pictures are subject to scrutiny because it is always possible to argue they are the product of chance.(115)

The Zapruder film would not survive such scrutiny. In Geis, the judge, although accepting Learned Hand's pronouncements on originality for photographs, still concluded Zapruder's film had many elements of creativity:

Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated.(116)

Such claims of inventiveness appear highly suspect. None of the selections seems more creative than the decision to list names in alphabetic order. For example, even if it had been selected for the occasion, what difference does the use of color film make? If such a selection is important, would it not follow that the type of paper used for a writing is an ingredient of its originality? Even if these arguments for creativity are tenable, surely there must be some circumstances where none exist at all; for instance, where a photograph is shot by accident.

8. The Copy Cases

Is taking a photograph or shooting a film just a form of copying facts? The answer night be found in a line of cases concerning originality in copying from other original works. This line starts in 1951 with Alfred Bell & Co. v. Catalda Fine Arts, Inc.,"(117) where Second Circuit Justice Frank did not read the Constitution to require novelty for copyrights, although patents did have to meet that standard. Original meant only not copied. The court held that lithographic mezzotint reproductions of old masters were entitled to copyright. Anyone could copy the originals, but not the mezzotints."(118)

Another case with an interesting twist is Alva Studios, inc- v. Winniger."(119) There, the court found originality in an exact scale-down reproduction of Rodin's 'Hand of God. The precise nature of the copying made the copy a genuine work."(120) The case is of course troublesome, considering the exactness of the copying involved. Obviously, Alfred Bell can be distinguished because there was an inherent difference between the copy and the original. However, in Alva the copy remained distinct only in size."(121)

Noteworthy too are cases where originality was not found. One decision is that of the Second Circuit in L. Ratlin & Son, Inc. v. Snyder.(122) It involved a Customs Service recordation of copyright in an Uncle Sam mechanical bank. Judge Oakes, in his majority opinion, called the disputed item a knock-off."(123) Perhaps that simple categorization dictated the fate of the claim. Judge Oakes then avoided any conflict with Alva by distinguishing it: The work in Alva was entitled to copyright because of the social benefit derived from the precise, artistic reproduction of a statue not readily accessible to the public."(124)

In the Seventh Circuit, Gracen v. Bradford Exchange,(125) in discussing originality in works copied from other works, took an approach similar to Batlin. The plaintiff Gracen participated in the defendant's competition in which she submitted a painting of Judy Garland's Dorothy in the Wizard of Oz. After Gracen refused an offer for her work, the defendant simply commissioned another artist to copy Gracen's painting. Judge Posner rejected her claim to copyright. To be original, there had to be sufficient variation between the derivative work, Gracen's, and the underlying work, the movie. The court found the difference insignificant and dismissed the action.

Are these 'copying copy' cases applicable to finding the original elements of photography and film? They happen, however, to be limited to situations involving copying from the public domain or making derivative works. Judge Oakes hints at this in this warning about copying from the public domain: (126)

To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.

More to the point is Gracen, in which Judge Posner limits his remarks to derivative works:

We are speaking, however, only of the requirement of originality in derivative works. If a painter paints from life, no court is going to hold that his painting is not copyrightable because it is an exact photographic likeness. If that were the rule photographs could not be copyrighted--the photographs of Judy Garland in "The Wizard of Oz," for example--but of course they can be, 1 Nimmer on Copyright § 2.08[E) (1982). The requirement of originality is significant chiefly in connection with derivative works, where if interpreted too liberally it would paradoxically inhibit rather than promote the creation of such works by giving the first creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work.(127)

Choosing a Theory for Copyright Protection

There is a difference between the view of copyright which requires original to mean creative and the view which requires works to be unique. The latter is suggested by Holmes in Bleistein and Hand in Jewelers' Circular, the former by Brandeis in International News and Douglas in Lee v. Runge and perhaps too by O'Connor in Feist. Which concept is then more consistent with the patent-copyright clause? Original, in the dictionary, connotes only that which is first. Thus, as was said in Alfred Bell, original simply means not copied. Creativity, on the other hand, suggests imaginative, artistic, or intellectual effort, even if the effort, as the courts have counselled, is mediocre. There lies the problem because creativity means something that is subject to judgment and taste. For this reason, judges have avoided such questions by purporting to make the standard of creativity low. Therein lies a paradox: If the patent-copyriqht clause indeed compels creativity, having a low standard is pointless. However, the clause doesn't speak of either originality or creativity; it calls for the promotion of arts and sciences.(128) The patent-copyright clause was said to be both a grant of power and a limitation. The grant is in some ways easy to understand. Comprehending the limitation may prove illusive if we expect the proscription only permits enactments which in all instances actually promote arts and science.

It is better to think of the mandate in broad terms, with Congress left the task of deciding how to implement its authority. Understanding what constraints are contained in the patent-copyright clause, simply requires remembering the framers' aversion to monopolies. The clause permits monopolies for limited times, provided those monopolies do not unfairly restrict the rights of others. Accomplishing this does not necessitate judges and juries deciding copyright on the basis of artistic merit.(129) Does this then give Congress has an expansive authority to grant monopolies? In fact, it does not when the authority is limited to unique creations. The concern with preventing abuse of monopolies vanishes if the government-conferred privilege of copyright is granted only to those works which are singular and unique. To allow a limited monopoly for a creation, which is one's own,(130)

which no one else could independently produce, cannot therefore offend the Constitution.

A Unified Theory for Patents and Copyrights

Supposedly, the requirements of copyright law differ from those of patent law. Patents must be novel and non-obvious.(131) Novelty, it is said, is not essential for copyright. Thus, compared to copyright law, patent law appears better positioned to reward talent. If that appears incompatible with the notion of promoting arts and sciences, there is, however, a good reason for the difference. While in scientific fields, talent and intelligence are most often needed to come up with original discoveries, the same does not hold for artistic creations. It is more probable for someone to hit upon an original creation if it is less a matter of science than art.(132) No doubt, for instance, more than one person invented the wheel. If Euclid hadn't found a relationship between the sum of the squares of a right-angle triangle, some one else would have. The same can be said for countless other scientific discoveries. As for ideas, one would be hard pressed to assert that, if all the esteemed and published thinkers from Plato to Marshall McLuhan had never lived, others would not be there to at least partially fill that void. However, if the great artists of history had never lived, the drama and fiction of Shakespeare and Dickens, the music of Mozart, Beethoven and Gershwin, and the art of Rembrandt and Van Gogh would never have been created.

Under the patent-copyright clause the goals of both are the same and reduced to their simplest form: to promote arts and sciences by offering an incentive only to those who will bring forth that which is unique. Patent law rejects the obvious because to do otherwise would permit monopolies to some, unfairly to the exclusion of others. For the same reason, copyright will not protect simple ideas and systems.

9. Protection Without Discrimination

The patent-copyright clause simply empowers Congress to grant monopolies to works merely on the basis of uniqueness.(133) How the work is created is unimportant. If the work is unique, that is sufficient for protection. The marketplace becomes the judge of artistic merit, not the courts.

Copyright protection, I suggest, exists without regard to the manner or talent involved in the creation of any particular work. Like patents, copyrighted works, despite claims to the contrary, do indeed have to be novel. Whether a work's origin is attributed to design or otherwise,(134) it still has the same protection. The rule applies whether the artist is an amateur or professional or whether the author's motive is commercial or otherwise. The reasons for avoiding such distinctions include the difficulty in drawing lines based on those differences and the absence of any compelling reason for doing so. Such issues do not then figure into questions of originality. Thus, 200 pages of letters end up with the same protection as a 200-page novel. Likewise, the amateur family portrait becomes no less original when compared to the professional photograph. When Congress has not chosen to distinguish works intended for private use and those targeted for public consumption, the courts don't need to be concerned about such distinctions either. Judges and juries are thus left with the simpler task of determining an objective issue, uniqueness or originality. They need not pose subjective questions like whether a work has artistic merit or social value. Nor need they determine other illusive matters such as the precise process, chance or otherwise, which created a particular work.(135)

Although natural rights are not to be ignored, considerations of artistic merit should be. Curiously, from this perspective, the patent-copyright clause might give Congress a broader mandate than it might otherwise enjoy under a natural rights notion of copyright.

10. The Idea\Expression Dichotomy

If Feist stands for the proposition that sustaining a copyright requires the claimant to prove even some creativity, the premise must be wrong.(136) Holmes put it better when he warned about the dangers of making aesthetic judgments of artistic works and said copyright depended on personality only. This is not to say that Feist was incorrectly decided, only that the Court was mistaken in asserting originality requires creativity, however meager. Because the issue presented to the Court concerned only the 'sweat of the brow' doctrine, Justice O'Connor's comments about creativity must simply be remembered as not controlling.

Despite the narrowness of the holding, the significance of Feist goes beyond simply rejecting 'sweat of the brow.' Abstractions such as ideas, theories, scientific discoveries and the like are similar to facts. All are essentially accessible independently and individually. What Feist says about facts is equally applicable to ideas or any other abstraction one chooses. The decision is then consistent with the formulation of originality that is the essence of the inquiry in most infringement cases: Copying is permissible, even to save labor, if the later work could conceivably be created without copying from the former.

The dichotomy often spoken of does not distinguish between the two abstractions of idea and expression on the basis of differences in their character, but, in the context of copying,(137) purely on the basis of quantity taken.(138) The prohibition is then simply from copying too much. When comparing a second work to one supposedly copied, the copying must not be so great that it would defy probability to suggest the second could be created without the first.

Learned Hand may have understood the dichotomy as involving a line not to be crossed. In Nichols v. Universal Pictures Corporation,(139) we have Hand's oft-quoted abstraction test:

Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his 'ideas,' to which, apart from their expression, his property is never extended. Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904; Guthrie v. Curlett, 36 F.(2d) 694 (C.C.A. 2). Nobody has ever been able to fix that boundary, and nobody ever can. In some cases the question has been treated as though it were analogous to lifting a portion out of the copyrighted work (Rees v. Melville, MacGillivray's Copyright Cases (1911-1916), 168); but the analogy is not a good one, because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases we are rather concerned with the line between expression and what is expressed.(140)

That Hand rejected the portion-taking analogy, does not mean he regarded the essence of the idea/expression dichotomy as qualitative and not quantitative.(141) The analogy was not a good one because exact copying of even a small portion of a work will always be more offensive than a much less precise copying of the whole. A balance is required, but this balance only goes to illustrate that indeed the dichotomy is concerned with matters of degree not kind.

From even the most original work, one may be free to take something. As Learned Hand said in Nichols v. Universal Pictures Corporation,(142) "the question is whether the part so taken is 'substantial,' and therefore not a 'fair use'(143) of the copyrighted work." On the other hand, even a modest work may have some protection. For instance, if in Feist(144) the defendant had simply photocopied(145) the plaintiff's white pages portion, a better argument might be made for an infringement claim.

11. The Dichotomy and the Infringement Action

Infringement cases always concern the level of permissible copying. Other than formality questions, the basic issue in those cases is whether there has been illicit copying. Two forms of defence follow, either an attack on the originality of the copied work--as in Feist--or a denial of copying. In the latter situation, the cases require posing two questions.(146) First, a court must ask, has the alleged infringer had access to the original author's work? Often this is not in issue anyway. This leads to the second query: is there substantial similarity in the works? The basis for this two-step inquiry arises from the belief, which perhaps is not so self-evident, that if two people independently create the same work, each is entitled to copyright. In support of this principle, authorities often quote Learned Hand in Sheldon v. Metro-Goldwyn Pictures Corporation, where he says:

[I]f by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's.(147)

Certainly magic would be the element creating such a coincidence. Hand only made the analogy to illustrate the notion that a single idea conceived earlier could not defeat copyright in a later work incorporating the same thought.(148)

The two-step inquiry is unnecessary because copyright does not prohibit all copying. If some copying is permissible, the only judicial issue left is whether the copying has been excessive. On the one hand, if a court were to find that a work, absent direct evidence of access, could not have been created without copying from another, then copying is presumed anyway. Moreover, with such striking similarity as the court may find, a conclusion of infringement naturally follows.(149) On the other hand, when there is some similarity, copying is permitted if what is copied is limited to the idea component of the dichotomy.

If Feist permits copying, then it is redundant to bother with the substantial similarity prong of the test to prove it. Although courts only speak of substantial similarity in reference to the copyrightable elements,(150) distinctions are usually blurred. Works may often be substantially similar because they rely largely on the same prior art(151) or are based on the same subject.(152) However, significant resemblances will not defeat an independent claim of copyright. On the other hand, some works will not be similar because they lack such common sources. Yet it may be that one work impermissibly plagiarized another. In other words, in one circumstance, a relatively small taking may be prohibited, but another instance would require a large appropriation to constitute infringement.

The essence of copyright is distinctiveness. Assessing copyright originality is then properly understood to involve judgments on probability, the probability that one work could or could not have been created without the assistance of the other. It is therefore the particularly unique combination of ideas or elements that will account for originality in a given work.

12. Property in the Proof

Although exceptions will occur, photographs and motion picture films get copyright without scrutiny.(153) Still, the copyright will commonly have its limits. As was said in Pouillet's Propriete Litteraire et Artistique:

It is almost useless to add--so evident is it--that our theory has the advantage of respecting the rights of each person; for if the photographer has the property in his proof, his property does not go beyond that, and everybody is none the less free to reproduce the same subject. Why not leave to him the property in the work which he has conceived and executed? Why encourage the piracy of his rivals?(154)

These rights have an interesting parallel in copyright protection for sound recordings. After Congress became concerned over piracy of commercial records, sound recordings(155) received independent recognition in 1971.(156) However, the protection, unchanged to date, provides fewer rights than those given to owners of other works. Section 114(a) of the Copyright Act, excludes a performance right for sound recordings. Section 114(b) goes further and provides only limited protection from copying:

The exclusive right ... in a sound recording under clause (1) of section 106 [reproduction] is limited to the right to duplicate the sound recording in the form of phonerecords, or of copies of motion pictures and other audiovisual works, that directly or indirectly recapture the actual sounds fixed in the recording...The exclusive rights [to reproduce and prepare derivative works] do not extend to making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording...(157)

Although Congress appears to have left the judgment of originality to the courts generally, there is something very telling about this enactment. By this section, Congress arguably removed any of the actual performers' rights in sound recordings, while acknowledging, as was said for photographs, 'the property in the proof.'(158) If Congress recognized authorship in the product of technology for sound recordings, the same rule must with equal or greater force apply to photographs and film.

What makes the proof so unique? The reasons are the same as they are for even the most simplest creations, handwriting, scribbling, or perhaps the exact words used for a short poem. Such works are unique because science and mathematics dictate they will be. The same rules of probability must apply to these works as apply to fingerprints, for instance.(159) The proof is unique because we know its creation will result in a product as distinctive as a fingerprint.

A copyrighted photograph or film will always enjoy protection from reproduction in the same medium, from technological copying. In other situations, certain types of copying are always permitted. Anyone is therefore free to photograph the same subject.(160) Beyond this, as Nimmer says, it is critical to appreciate the difference between the copyrightable elements of the picture and those of the underlying subject matter.(161) Nimmer makes the distinction for film, but it applies equally to still photography.

The video or still photographer will at times shoot a scene without exercising any control over the subject. Examples of this abound in news photography, but also in nature pictures and the like. In other situations, the work will involve some further creative process in the arrangement of the subjects and the development of the final product. Examples of this include portraiture and motion pictures. Camera positioning and movement,(162) editing and film processing will all contribute to an original work. When the photographer is more than a passive observer, the copyrightable elements of the work will also include the positions, poses and placements of persons and objects.(163) In film, the elements may include the script,(164) as well as any dramatic performances.(165)

When the camera captures what the photographer does not control, copyright protection is limited. Long ago the Supreme Court commented that an official court reporter could not claim authorship in the opinions of the Court.(166) Similarly, a photographer cannot claim authorship in the entirety of his work when he does not control the placement or action of its subjects. After one person photographs a subject, others are free to go to the same location or use similar materials and take photographs in at least a similar manner.(167) For example, nothing prevents another film-maker from shooting a re-enactment of the Rodney King incident.

Does this mean others may freely imitate such a work? Perhaps this is where a distinction may lie between photographs and film. Filmed subjects may not only involve the subject, but the movement of the camera. Even without the benefit of editing, that movement will have its own originality.(168) For film, imitation may be limited to a single frame or frames, otherwise the incident may not be filmed in a way which would too closely resemble the original.

Copyright, as I have suggested, does not prohibit all copying, only excessive copying. Some photographs may be so basic or so lacking in independent elements of authorship as to be only protectable against reproduction in the same medium. The mechanical copy will certainly have its uniqueness, but the basic image may not. As an example, a painter might use another's sunset photograph as a model from which to create his own vision of the setting sun.(169) On the other hand, sketching frames from the Zapruder film may be prohibited because of the uniqueness of the original in place and time.(170) Even if one sketch is permissible, not necessarily so a whole sequence imitating a film's audiovisual effect.(171)


Congress has not put photographs on any different plane than other works. Contrary to the unfortunate language set forth in Feist, works receive copyright based on their uniqueness, regardless of how they are produced. It is this originality which, as was said in Feist, is Constitutionally mandated. The monopoly of copyright cannot prevent others from using that which is not unique, that which does not have the personal stamp of the author. Copying from photographs, is no different from copying from other works. The copying is permissible if the line between taking too much and taking just enough is not crossed. It just happens that the line will always be crossed when a photograph or film is reproduced in the same medium. If only simple answers could follow from the simplicity of these rules.


1. Los Angeles Times, March 7, 1991. Holliday did nothing with his March 3rd tape for a day and half. He then took it to his favorite station, KTLA and upon a handshake received $500.00 for his only copy. KTLA, because of an affiliation agreement, fed it to CNN requesting a one-day local exclusive. However, KNBC, L.A.'s part of the NBC network, got the tape through a Phoenix station affiliated to both CNN and NBC. After that, an upset KTLA news director made the tape available to other local stations free. KNBC also gave Holliday $500.00. Los Angeles Times, March 9, 1991.

On May 15, 1991, Holliday registered his copyright. His lawyer called KTLA's actions irresponsible claiming an understanding the station could use the tape locally only. The news director disputed that assertion and also questioned Holliday's copyright claim: "We copyright our newscast every night. One could argue the point that we copyrighted the goddamn thing." Washington Post, June 4, 1991.

Later, Holliday reportedly received $1500.00 from female rappers 'Bytches with Problems' for the use of ten seconds of the tape in a music video. Chicago Tribune, May 17, 1991.

Holliday's lawyer was reported to have sent letters to the estimated 900 stations who carried the film. Each letter, under the name of the George Holliday Foundation, demanded $7,500 for the use of the tape. Washington Post, June 4, 1991.

2. There are at least 12 million such cameras in U.S. households.

3. 293 F.Supp. 130 (S.D.N.Y. 1968).

4. Another famous amateur film is the one shot by George Willens, a Detroit printing company owner. On May 6, 1937, he filmed the explosion of the Hindenberg. "I thought them about the safest way to travel," he said, "but after this I'll never get in one again." See discussion of other famous amateur films in the San Francisco Chronicle, April 3, 1991.

5. In most instances of amateur photography, the work will have no commercial value and no one will have an interest in protecting it.

6. Fair use only comes into issue once copyright is established. For newsworthy subjects however, the fair use doctrine will often permit the use of works which would otherwise be protected by copyright. See the general provisions of fair use under 17 U.S.C. § 107. While the originality requirement and the fair use doctrine are both shaped in part by Constitutional free speech considerations, the two are distinct. See the treatment of copyright and the First Amendment in M. Nimmer, "Does Copyright Abridge the First Amendment Guarantee of Free Speech," 17 UCLA L.Rev. 1180 (1970).

Nimmer elsewhere has this comment about the doctrine, giving the Mai Lai photographs as an example: "No amount of words describing an "idea" of the massacre could ever substitute for the public's insight gained through the photographs. The photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode. It would be intolerable if the public's comprehension of the full meaning of My Lai could be censored by the copyright owner of the photographs." Nimmer § 1.10[C], 1-83.

7. ___U.S.___, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

8. Seven justices joined in the opinion. Justice Blackmun simply concurred in the judgment.

9. Actual copying amounted to the use of 1,309 of 46,878 listings. ___U.S.___,___, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358.

10. Most authorities credit Louis Daguerre as the father of photography. His daguerreotype process, which he announced in Paris in 1839, became the prominent method for creating photographs for the next twenty years. However, Daguerre was not alone in the search for a process that would fix optical images onto photosensitive surfaces. W. H. Fox Talbot, an Englishman, independently developed a photographic process involving a negative-positive technique. However, neither Talbot or Daguerre was the first to create a photograph. Daguerre, who one author described as a showman, learned the basics of the science of photography from Joseph Nièpce. See G. McDonald, Camera (New York, 1980), 10. Nièpce's "View of the Courtyard at Gras" was taken in 1826. The picture took several hours to produce. The exposure was affected by the movement of shadows from one side of the picture to the other. Still even Nièpce relied on advances in the sciences of optics and chemistry going back centuries. They included the development of the camera obscura (dark room), used by artists to trace images created by ground glass. The first account of the 'dark room' dates back to 1558. See F. Rinhart & M. Rinhart, The American Daguerreotype (Athens, Ga., 1981), 3-4. As for the chemistry, see for instance Thomas Wedgewood and Sir Humphrey Davy "An Account of a Method of Copying Paintings Upon Glass, and of Making Profiles, by the Agency of Light Upon Nitrate of Silver," 1802, reprinted in B. Newhall, ed., Photography: Essays and Images, (New York, 1980) 15.

11. 383 U.S. 1 (1966).

12. Id. at 5.

13. Id. at 7.

14. Id.

15. Id. at 9; quoting from V Writings of Thomas Jefferson at 113 (Ford ed. 1895), being part of a proposed draft of the Bill of Rights in a letter to Madison in August 1989.

16. 464 U.S. 417, 429 (1984).

17. 334 U.S. 131, 158 (1948).

18. Id.

19. ___U.S.___,___, 111 S.Ct. 1282, 1288, 113 L.Ed.2d 358.

20. 100 U.S. 82.

21. 111 U.S. 53.

22. Act of May 31, 1990, 1 Stat. 124.

23. 8 Anne c. 19; Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 Com. & Law 37, 44 n. 23, (Dec. 1990).

24. 1 Stat. 124, § 1. See Burrow-Giles Lithographic Co. v. Sarony, 4 S.Ct. 279, 280. (1884). See also Wheaton and Donaldson v. Peters and Grigg, 33 U.S. 591, 8 Pet. 591, 8 L.Ed. 1055 (1834).

25. "Between 1789 and 1904, there were in all some twenty-five laws dealing with copyrights. Solberg, Copyright in Congress (1905), 89-93." Mazer v. Stein, 347 U.S. 201, 209, n. 13. As stated in this opinion, after the first enumeration of protected works, "later, designing, engraving and etching were included; [2. Stat. 171.] in 1831 musical compositions; [4 Stat. 436.] dramatic compositions in 1856; [11 Stat. 139.] and 1865." [13 Stat. 540] Mazer v. Stein, 347 U.S. 201, 208-209.

26. 13 Stat. 540. Wood v. Abbott, 30 F.Cas. 424, 5 Blatchf. C.C. 325 (C.C.N.Y. 1866), held that a photograph was not a "print, cut or engraving" as defined by the 1831 act.

According to the circuit court decision in Sarony, "Paintings, drawings, and photographs were the last of the branches of the fine arts to be recognized as worthy of copyright protection [in 1882] in England. Previous to the adoption of the above provision, an act had been passed giving copyright in sculptures and engravings. And in most European countries copyright protection has been extended through the whole range of the fine arts." 17 F. 591, 596.

27. 100 U.S. 82, 25 L.Ed. 550, 552.

28. The answer did not come in the interim case of Baker v. Selden, 101 U.S. 99 (1879), in which the Court refused to grant protection to accounting forms.

29. His biographer writes that Sarony, "already a huge success as a draftsman and publisher of popular lithographs before the war...learned photography and established a studio on Broadway in New York in 1866--exactly the right time to take advantage of the American public's growing fascination for the theater by satisfying the accompanying demand for pictures of its stars. For the next thirty years Sarony photographed every actor and actress working on the New York stage." B. L. Bassham, The Theatrical Photographs of Napoleon Sarony (Kent, 1978), 3.

30. Wilde's manager arranged the sitting to publicize his principle's arrival in New York. He did so without the usually bickering over fees. See Bassham, op cit. at 72 and Lewis & Smith, infra.

According to one biography of Wilde, Sarony didn't even snap the shutter: "'A picturesque subject indeed!' cried little Sarony, dancing about till his habitual red fez shook, as Wilde arrived holding a white cane across his fur-lined overcoat. Sarony took him first in his seal-skin cap, then bareheaded in his long trousers, then bareheaded in his knee breaches. As each pose was held Sarony would cease jabbering, turn and stare out the window in rapt silence while an assistant took the picture." L. Lewis & H. J. Smith, Oscar Wilde Discovers America (1882) (New York, 1936), 39.

31. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

32. Id.

33. Id. at 60.

34. 17 F. 591 (C.C.N.Y. 1883).

35. Id. at 596.

36. Id. at 597-598.

37. L. Figuier, La Photographie au Salon de 1859 (Paris, 1860), 14 quoted in N. Rosenblum, op cit. at 213.

38. 17 F. 591, 599.

39. Id. at 600.

40. 111 U.S. 53, 59.

41. Id.

42. Bassham, op cit. at 4.

43. Id. Sarony even paid some of his subjects rather large fees. For instance, he paid Sarah Bernhardt $1,500 in 1880 and Lillie Langtry $5,000 in 1882.

44. Many of the first photographers can better be described as scientists and experimenters. Amateur is perhaps not an apt word. Some of those who might be described as amateur were perhaps at the forefront of the development of the art. Whether at the forefront or not, the elder Oliver Wendell Holmes was, for example, among the more notable amateurs of the day. He actually wrote articles on the subject which appeared in the Atlantic Monthly in 1859 and 1863. Newhall, op cit., 53-78. Lewis Carroll (Rev. Charles L. Dodgson) was also a worthy amateur. N. Rosenblum, A World History of Photography, (New York, 1984) 60.

45. Eastman's camera cost $25.00. It contained a role of film capable of making 100 pictures. The user on finishing the role returned the whole camera to Eastman for processing. An additional $10.00 sufficed to refill the camera. L. Mark, Photographs That Changed the World, (Toronto, 1989) 12.

46. This proved to be quite a booming business. Private portraits could be obtained from the studios in larger cities, while itinerant photographers went about the country making their services available in less populated areas. F. Rinhart & M. Rinhart, op cit. (Athens, Ga., 1981).

47. See N. Rosenblum, op cit. at 62-73. A carte portrait of Lincoln, sans beard, taken February 27, 1960 by Mathew Brady was said to have helped Lincoln win the presidency. See portrait in Newhall, op cit. at 49.

48. Wilde brought Langtry to Sarony for her sitting. Apparently, her portrait was well received as it was going for $5.00 in the shops. Lewis & Smith, op cit. at 418-419.

49. 188 U.S. 239.

50. Dissenting, Justice Harlan found the poster without artistic merit, having no value at all except from its function as an advertisement. Not only was the work without any aesthetic qualities, it also lacked a quality of intrinsic usefulness required by the Constitution. Id. at 252. For Holmes however, the illustrations in the poster were no less valuable just because they were used for advertising.

51. At 111 S.Ct 1282, 1294, Justice O'Connor says, "There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. See generally Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298, 300, 47 L.Ed. 460 (1903) (referring to 'the narrowest and most obvious limits'). Such works are incapable of sustaining a valid copyright. Nimmer § 2.01[B]."

52. 188 U.S. 239, 250.

53. Id. at 251.

54. Act of Aug. 24, 1912, 37 Stat. 488.

55. Thomas Edison once filmed the launching of a ship. See Edison v. Lubin, 122 F. 240 (3rd Cir. 1903), appeal dismissed for want of jurisdiction, 195 U.S. 625 (1904). Edison's motion picture of the launching, being a sequence of pictures on celluloid film, was found to be a photograph. Originality did not surface as an issue, only whether Edison's one copyright notice on the sheet of film sufficed for the whole. The court held that it did and thus each frame did not have to be individually marked.

56. 234 F. 963 (S.D.N.Y. 1916).

57. Id. at 964.

58. 212 F. 930 (2nd Cir. 1914).

59. 281 F. 83 (2nd Cir. 1922), cert. denied, 259 U.S. 581 (1922).

60. See for example Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539 (1st Cir. 1905). Cf. Edward Thompson Co. v. Amer. Law Book Co., 122 F. 922 (2nd Cir. 1903).

61. 91 F.2d 484 (9th Cir. 1937).

62. 274 F. 932, 934-935.

63. Nimmer, § 2.08[E].

64. One case did hold however that a commercial photograph of a chair was not entitled to copyright. See Laskowitz v. Marie Designer, Inc., 119 F.Supp. 541 (S.D.Cal. 1954).

65. 293 F.Supp. 130 (S.D.N.Y. 1968).

66. Id. at 131.

67. Id. at 133-134.

68. Id. at 144.

69. Id. at 141.

70. Id. quoting 274 F. 932, 934.

71. Act of October 19, 1976, 90 Stat. 2541.

72. The accompanying House Report, H.R. 92-1476, 94th Cong., 2d Sess. 53 (1976), discusses the distinction between the work and medium: "The definitions ... in § 101 ... reflect a fundamental distinction between 'original works' which is the product of 'authorship' and the multitude of material objects in which it can be embodied. Thus ... a 'book' is not a work of authorship, but is a particular kind of 'copy.'"

73. Act of March 4, 1909, 35 Stat. 1075, later codified as 17 U.S.C. by an Act of July 30, 1947, 61 Stat. 652.

74. Section 5(n) added by Act of Oct 15, 1971, 85 Stat. 391.

75. H.R. 92-1476.

76. See Baker v. Selden, 101 U.S. 99 (1879).

77. ___U.S.___,___, 111 S.Ct. 1282, 1290-1291.

78. Patry, op cit., at 42.

79. 281 F. 83, 88.

80. Patry, op cit., at 43-45.

81. Interestingly, exact expression received protection, but other forms of copying did not. Stowe v. Thomas, 23 F.Cas. 201 (C.C.E.D. Pa. 1853) held that translating Uncle Tom's Cabin to German did not infringe the book. Congress remedied this by an Act of July 8, 1870, 11 Stat. 138.

82. See H. B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," 29 Wayne L.Rev. 1119 (1983).

83. See 8 Anne c. 19, § 1, the preamble.

84. See Patterson & Joyce, "Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations," 36 UCLA L.Rev. 719, 787-788 (1989).

85. See Erie Railroad v. Thompkins, 304 U.S. 64 (1938), holding that in diversity proceedings, state law applies; there is no federal common law.

86. Patry, op cit., at 45.

87. See R. Denicola, "Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works," 81 Colum. L.Rev. 516, 519-520 (1981).

88. Letter to Oliver Evans (May 1807), V Writings of Thomas Jefferson, at 75-76 (Washington ed.), quoted in Graham v. John Deere Company of Kansas City, 383 U.S. 1, 9 (1966).

89. 8 Anne c. 19, § 1.

90. 422 U.S. 151, 156 (1975).

91. Quoted in Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 431-432.

92. Adopted by Brennan, J. (diss.) in Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 582 (1985), citing International News Service v. Associated Press, 248 U.S. 215 (1918); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309 (2nd Cir. 1966), cert. denied, 385 U.S. 1009 (1967).

93. 471 U.S. 539, 545, (1985).

94. See David Vaver, "Intellectual Property Today: Of Myths and Paradoxes," 69 Can. Bar Rev. 98 (1990).

95. Here copyright is used to protect first publications rights. Another instance of the use of copyright to apparently stifle the public's right to know is found in Salinger v. Random House Inc., 811 F.2d 90 (2nd Cir. 1987). The now reclusive author of the Catcher in the Rye succeeded in maintaining his privacy by the keeping letters he had written out of an unauthorized biography.

96. 17 U.S. (4 Wheat.) 316 (1819).

97. The Supreme Court said, "As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product." Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 429.

98. 222 U.S. 55 (1911), holding that the public performance of a motion picture based on a copyrighted book constitutes an infringement of the book.

99. Id. at 63.

100. 464 U.S. 417, 431.

101. In the last two major revisions of copyright law--1909 and 1976--Congress has paid careful attention to the patent-copyright clause. See for instance this House Report statement of 1909: "In enacting a copyright law Congress must consider ... two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly." H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909) quoted in Sony Corp. v. Universal City Studios, Inc. 464 U.S. 417, 429 n. 10.

102. 17 U.S.C. § 301 preempts any state jurisdiction over copyright. Formerly, unpublished works were protected in perpetuity by the common law.

103. Works created as "works-for-hire" are protected for a simple 75-year term. See 17 U.S.C. §§ 302-305 for various rules, including transition rules for copyright duration.

104. Certainly, the latest act has made some advances. For instance, the Copyright Act now provides for a termination right. Thirty-five years after the giving of any assignment the author or the author's personal representative may terminate the original grant. This right cannot be alienated. Another example of the primacy of authors' interests is suggested by the adoption of the Berne Convention and the movement to enlarge the moral rights of authors. Still another instance is the removal of the printing requirement for English speaking books. Before July 1, 1986, subject to several exceptions introduced over the years, books written in English and not printed in the United States or Canada did not receive full copyright protection. 17 U.S.C., § 601. While the House Report accompanying the 1976 Act found some justification for these provisions, it concluded they should be eliminated. H.R. 94-1496.

105. See Patry, op cit. at 44.

106. ___ U.S. ___, ___, 111 S.Ct. 1282, 1290.

107. H.R. 94-1476.

108. ___ U.S. ___, ___, 111 S.Ct. 1282, 1296.

109. 248 U.S. 215 (1918).

110. Id. at 254. According to Geis, the "reference to photographs was not necessary to the point being made and in any event it seems clear that Mr. Justice Brandeis was mistaken." 293 F.Supp. 130, 143.

111. 404 U.S. 887 (1971). The Court refused to grant certiorari.

112. Id. at 890.

113. Id. at 891-892.

114. One can always counter that the particular position on the balcony where the photographer stood was indeed significant.

115. For instance, the photographer might shoot hundreds of pictures and later find artistic merit in only one or two. The painter, on the other hand, will not have such luxury in experimentation.

116. 293 F.Supp. 130, 143.

117. 191 F.2d 99 (2nd Cir. 1951). See the cases discussed in L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2nd Cir. 1976) (en banc), cert. denied, 429 U.S. 857 (1976).

118. Perhaps Alfred Bell is not good law after Feist, except it may be distinguishable because the trial judge found, "no two engravers can produce identical interpretations of the same oil painting." 74 F.Supp. 973 (S.D.N.Y. 1947).

119. 177 F.Supp. 265 (S.D.N.Y. 1959).

120. Id. at 267.

121. While Alfred Bell is still probably good law after Feist, the same cannot be said for Alva.

122. 536 F.2d 486 (1976) (en banc), cert. denied, 429 U.S. 857 (1976).

123. Id. at 492.

124. Id. at 491-492.

125. 698 F.2-d 300 (7th Cir. 1983).

126. 536 F.2d 486 at 492.

127. 698 F.2d 300, 305.

128. For that matter, the work of making a precise scale-model of Rodin's 'Hand of God' in Alva, as Oakes suggested in Batlin, promoted arts and sciences by giving protection to a work which would otherwise not be available to the public.

129. Going back to Pouillet's Propriete Litteraire et Artistique, we remember that the middle ground offered was rejected because it would only lead to arbitrariness. Judges and juries are better able to assess when a work is original, in the sense that it is not copied from something else, as opposed to judging its merit as art.

130. See Holmes, J. in Bleistein, supra, at 188 U.S. 239, 250: "Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has something irreducible, which is one man's alone." See also Clark J. in Deere, supra, at 383 U.S. 1, quoting Jefferson: "Monopolies may be allowed to persons for their own productions in literature, & their own inventions in the arts..." See also Douglas, J. in Lee v. Runge, supra, 404 U.S. 887, 890: "An author's 'Writing' or an inventors 'Discovery' can, in the constitutional sense, only extend to that which is his own." [Emphasis added.]

131. As was said in John Deere 383 U.S. 1, 9, "Jefferson did not believe in granting patents for small details, obvious improvements, or frivolous devices."

132. So too within copyright law itself, some works appear more protectable than others. Artistic works are more likely protected than commercial works: Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277 (3rd Cir. 1991). Historical works get less protection that works of fiction: Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2nd Cir. 1980); Miller v. Universal City Studios, Inc. 650 F.2d 1365 (5th Cir. 1981).

133. Congress can specify a more critical standard. It may be, however, that Congress is justified in not doing so if it believes such a standard would act as a disincentive to authors. Encouraging publication of original works perhaps does not begin by telling would-be authors that their creations will undergo scrutiny, even if such scrutiny is minimal.

134. As was said in Alfred Bell, 191 F.2d 99: "[E]ven if their substantial departures from the paintings were inadvertent, the copyrights would be valid. A copyist's bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the 'author' may adopt it as his and copyright it."

135. Ordinarily though, the fair use doctrine will play a role where the issue of originality does not. However, as its name implies, the doctrine is concerned with the use of the work rather than its originality. One use may be protected while another will not be.

136. The suggestion that a person asserting originality must prove it is also an unfortunate way to characterize the process of judging copyright entitlement.

137. Without even considering fair use issues, the same copying may be infringement in one instance and not in another. Consider, for instance, an anthology of 20 classic poems. Suppose someone copying that selection, publishes a work containing precisely the same poems, even if in a different order. The case for infringement would be far stronger than in the instance of the copyist adding 20 or 50 more poems to the later work.

138. Here is a hypothetical that may illustrate the problem with the idea\expression dichotomy. Given a work, one can conceive of a situation where ten other works each take from the original a part so that if the original had a tangible existence, it would disappear. Yet none of the other works individually can be said to infringe the original. Where then is the idea? Where then is the expression? The point is there was never any difference between expression and idea in the first place. One idea by itself is just an idea. However, several ideas in combination become the expression, the expression nobody can take. The hypothetical may have a practical counterpart. Take this note for instance. It contains sixteen sentences. The whole of the paragraph cannot be taken because of its uniqueness. The same cannot be said for any one sentence. For this reason, titles are not normally subject to copyright. Of course, the application of the fair use doctrine may permit copying the entire footnote. This would still not affect its originality as a whole.

139. 45 F.2d 119 (2nd Cir. 1930).

140. Id. at 121.

141. Compare G. Hammond, "The Legal Protection of Ideas," 29 Osgoode Hall L.J. 93, 111, n. 54 (1991), who for instance reads Roy Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137, 1145 (S.D.N.Y. 1980) differently. There, Judge Ward suggested that taking the ten or fifteen minutes sequence of the burning of Atlanta out of Gone with the Wind would still amount to a substantial taking.

142. Id.

143. Fair use, in the context in which Judge Hand used it, should not be understood to have its modern meaning under § 107 of the Copyright Act.

144. In Feist, the Court recognized that the entire volume produced by the telephone company--its introductory portion and yellow pages--was entitled to protection.

145. It is still doubtful that even a particularly unique page lay-out combined with a new font would attract copyright protection. However, an argument might be made on the basis of West Publishing Co. v. Mead Data Central, Inc., 616 F.Supp. 1571 (D. Minn. 1985), aff'd, 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). In 1985, Mead Data proposed its "Star Pagination Feature," on its Lexis data base service. The feature cites page numbers from volumes of published law reports, the plaintiff's included. West, the leading publisher of American law reports, obtained a preliminary injunction preventing Mead Data from referencing West's pages. That there may exist copyright protection for such a product as page numbers seems now far-fetched after the Feist decision. For a critique of West Publishing see Patterson & Joyce, op cit.

The Copyright Office has a policy of not accepting typefaces for registration. The Office has now announced that it will reconsider its 1988 decision (53 F.R. 33110), which requires registrants of computer programs to disclaim copyright in that portion of the data that fixes or depicts a typeface, type font or letter form. See 56 F.R. 42073 (No. 165). These rulings followed the rejection of copyrightability in the 1976 House Report (H.R. 94-1476), as well as Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). In Eltra, the court denied a mandamus application compelling the Registrar of Copyrights to register the applicant's typeface design. Under former § 202.10(c), 37 C.F.R., now codified in § 101, the Copyright Office viewed typefaces as utilitarian in nature and for that reason not entitled to registration.

This utilitarian wrinkle in copyright law was first given life in Mazer v. Stein, 347 U.S. 201 (1954). Later, as noted, the Copyright Office incorporated it in its rules. See for instance its application to clothing designs under 56 F.R. 20241. I believe that simple considerations of originality are at the heart of the rule and the rule itself only serves to confuse the subject. For that reason it is better to accept a rule of non-copyrightability for some classes of works. The Copyright Office has done this in 37 C.F.R. 202.1 for categories such as titles, lettering and blank forms. See for instance Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1989), holding a medical insurance claim form not entitled to copyright. This followed the original articulation of the rule in Baker v. Selden, 101 U.S. 99 (1879).

146. See Arnstein v. Porter, 154 F.2d 464 (2nd Cir. 1946).

147. 81 F.2d 49, 54 (2nd Cir. 1936).

148. Id. at 53-54. Hand said in Sheldon: "At times, in discussing how much of the substance of a play the copyright protects, courts have indeed used language which seems to give countenance to the notion that, if a plot were old, it could not be copyrighted. London v. Biograph Co. (C.C.A.) 231 F. 696; Eichel v. Marcin (D.C.) 241 F. 404. But we understand by this no more than that in its broader outline a plot is never copyrightable, for it is plain beyond peradventure that anticipation as such cannot invalidate a copyright."

149. Accounting for access is too problematic a factual issue. Expecting a plaintiff, even given liberal discovery practices and techniques, to establish an opponent's access is simply unfair. The defendant's web of contacts will, like anyone else's, involve such geometric proportions that making the right connections will be impossible. Still direct evidence of access may be helpful as it may indeed turn a doubtful case into a certain one. As well, evidence of the impossibility of access, particularly where the plaintiff supplies that information, may assist a court in determining whether two works are actually similar. See Twentieth Century-Fox Film Corp. v. Diekhaus, 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716 (1946), where the plaintiff's unpublished work was kept in a vault. See also Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984). However, it is the comparison of the works which affords an adequate basis for determining whether there has been improper copying.

150. See, for instance, Sid & Marty Krofft Television v. McDonald's Corp. 562 F.2d 1157 (9th Cir. 1977).

151. For example, see Heim v. Universal Pictures Co., (2nd Cir. 1946), where defendant claimed his composition was only similar to the plaintiff's because they both utilized a theme of Dvorak which itself was based on older commonplace one.

152. See, for instance, Walker v. Time Life Films, Inc., 784 F.2d. 44 (2nd Cir. 1986), involving a 1976 book about police work in the Bronx, entitled "Fort Appache," and the later movie, "Fort Appache: The Bronx."

153. Exceptions may arise where the work is only a copy of something else, e.g., a photograph of a photograph or where the creation is not a work of authorship. For instance, if a security camera videotapes an event, can it be said that someone is the author of the film?

154. 17 F. 591, 600-601.

155. A phonerecord is to be distinguished from a sound recording. The latter is a work, the former, a mere physical rendering. A phonerecord will often embody two copyrights, one for the music (or words alone, if it is a literary work), and one for the actual recording.

156. Act of Oct 15, 1971, 85 Stat. 391.

157. Freedom to imitate is not absolute. Under state law, a professional singer may have a cause of action for personality appropriation in a sound-alike recording. See Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

158. Copyright in a sound recording simply protects the technology, while otherwise ignoring the human creativity. Only the sounds in their captured state, the pure product of technology, have the protection of copyright. If a sound recording can be imitated, then in a sense, the artistic efforts of the performers, producers or engineers have no legal protection. Even the decision to start or stop the recording gets no recognition.

159. A fingerprint is a simple creation, but, as everyone knows, no two are alike. Of course, no one has demonstrated that it is impossible for two persons to have the same set of prints. However, it is fair to say that there must be, with any degree of precision, a finite number of possible combinations of prints. Yet only because that number is so large and the corresponding probability of duplication so small that we can conclude that no two people can have the same prints.

160. F.W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1st Cir. 1951); Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 63 (3rd Cir. 1978), cert. denied, 439 U.S. 880 (1978). See also dicta in Pagano v. Charles Beseler Co., 234 F. 963 (S.D.N.Y. 1916) and Gross v. Seligman, 212 F. 930 (2nd Cir. 1914).

161. Nimmer § 2.09[F], 2-138.

162. In Kisch v. Ammirati & Paris Inc., 657 F.Supp. 380, 382 (S.D.N.Y. 1987), Judge Leisure said, "the copyrightable elements include such features as the photographer's selection of lighting, shading, positioning and timing."

163. In Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 669, n. 7, (7th Cir. 1986), cert. denied, 107 S.Ct. 1593 (1987), a footnote suggests that the player's performances in a baseball game may constitute copyrightable subject matter. Nimmer criticizes this approach for various reasons including the court's expressed doubts about the creativity of the performance. Nimmer § 2.09[F] 2-138, 2-138.3.

164. Plays and scripts normally contain direction as well as dialogue. In the usual course, the script is part of the audiovisual work, and therefore not a literary work. Nothing, however, prevents the script from being copyrighted as a dramatic work and later being incorporated in a film as a derivative work. Note some major motion pictures have separate copyrights in the screenplay and the film.

165. Nimmer says: "there is little question but that a performer's rendition of a work written by another may in itself constitute an original work." See Nimmer 2.10[A], 2-144.1, citing Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2nd Cir. 1955); Waring v. WDAS Broadcasting Station, Inc., 327 Pa 433, 194 A. 631 (1937). In Capitol Records, 221 F.2d 657, 664, Hand, dissenting--with the majority agreeing on this point--said, "Congress could grant the performer a copyright...provided it was embodied in a physical form capable of being copied." See Nimmer § 2.10[A], 2-145.

166. See Wheaton and Donaldson v. Peters and Grigg, 33 U.S. 591, 659, 8 Pet. 591, 8 L.Ed. 1055 (1834).

167. See Rochelle Asparagus Co. v. Princeville Canning Co., 170 F.Supp. 809 (S.D. Ill. 1959); International Biotical Corp. v. Associated Mills, Inc., 239 F.Supp. 511 (N.D. Ill. 1964). Both these cases involved one competitor's claim of copyright infringement against another's use of similar photographs contained in commercial illustrations.

168. Camera position involves only a few basic forms: With the camera still the operator can zoom in and out or pan back and forth. The camera itself can move forward, backward, right or left, or up and down. It is the combination of these movements which invariably will produce a unique result.

169. This hypothetical would probably not have a practical counterpart. Those photographs, so lacking in artistic merit, would probably not be copied or if copied, no one would notice or care.

170. In Geis, however, this was not the basis for finding that reproducing the film by sketching it could constitute infringement.

171. See Horgan v. MacMillan, Inc. 789 F.2d 157 (2nd Cir. 1986), reversing and remanding 621 F.Supp. 1169 (S.D.N.Y. 1985). The estate of George Balanchine alleged infringement of his copyrighted Nutcracker choreography. MacMillan published a book containing photographs that seized moments of a Nutcracker performance. The estate complained the book constituted an unauthorized derivative work. The trial court decided in favor of the publishers. The basis for the right of copyright in the ballet was its movement, something a photograph could not capture. The appeal court, however, felt that it was still possible for a photograph to infringe the choreography.

Law office of Kenneth W. Golish.