Copyright Protection Generally

The Constitution of the United States grants Congress the power, in Art. I, § 8, Cl. 8, to make laws for the protection of copyrights and patents:

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.

Basic Requirements

Pursuant to this authority, Congress since the early history of the United States has enacted copyright laws to protect the ownership of “creative works” (or “writings”) by authors and has limited the length of time for this protection. However, currently the term for copyright protection is rather unlimited in that it extends 70 years beyond the life of the author (or, for some types of works, until the earlier of 95 years from its first publication or 120 years from its creation). § 102 of the 1976 Copyright Act outlines the basic substantive provisions for copyright protection in the United States. § 102(a) states:

Therefore, the two basic elements that must be present for a work to be copyrightable are: originality and fixation. The fixation requirement derives from the reference in the Constitution to “writings” and from cases preceding the Act. Basically, “fixed in a tangible medium of expression” means that a physical rendering of the work must be made that is sufficiently permanent and stable such that it “can be perceived, reproduced, or otherwise communicated.” Fixation can be accomplished in many ways; for instance, computer programs are considered fixed if they are recorded onto some type of memory device (e.g. computer RAM). In addition, the language allows perception, reproduction, or communication to be achieved “either directly or with the aid of a machine or device.” This simply means that the work does not have to be observable directly from the object carrying the fixed work. Rather, the work is sufficiently fixed as long as it can be retrieved from the object through use of any other machine or device. Lastly, fixation is also important because it the point in time when the copyright is automatically created.

A copyrightable work must also be an “original work of authorship” to receive protection. Although the Constitution never mentions the term originality, courts have long recognized it as a necessary element for copyright protection. The Supreme Court has stated in the Feist decision that “[t]he sine qua non of copyright is originality” and continues to define the term as meaning that the work “was independently created by the author and that it possesses at least some minimal degree of creativity.” The first “independent creation” prong simply means that the work is the independent product of the author and not derived or stolen from someone else. Sometimes the issue of “authorship” can arise when courts attempt to determine which persons are deserving of the right. However, it is important to note that originality does not mean novelty since independent creation is a defense.

The second “creativity” prong is very minimal. The Court has stated that “the requisite level of creativity is extremely low; even a slight amount will do.” Importantly, however, the extent of the protection will generally be greater as the quantum of creativity increases. Courts will not protect works simply for what has been called “sweat of the brow” since the amount of effort expended in creating the work is irrelevant. Further, courts also will not evaluate the quality or worth of the creation, only whether a sufficient amount of creativity exists.

In addition to creativity, another major substantive limitation on the extent of copyright protection available for a work is based on the idea/expression dichotomy. Courts have long held that copyright protection extends only to the expression of the work and not its purely factual or ideological components in other words, the description of the art is protected, but not the art itself nor its use. Ideas are exclusively the subject matter for patents. The 1976 Act codifies this principle in § 102(b) as follows:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Furthermore, in situations where there are limited ways to express an idea, copyright protection might be denied under the doctrine of merger since granting protection would essentially extend protection to the idea itself. However, as the 1994 CCC Information case shows, merger may be less appropriate with value-added information created by the authors interpretation or synthesis of facts.

Bundle of Rights

If someone creates a work that qualifies for copyright protection, what protections do they receive? As outlined in § 106 of the 1976 Act, copyright owners are granted an enumerated set of exclusive rights:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

Fair Use

Typically, the most important limitation to the “bundle of rights” provided under § 106 is fair use. The concept of fair use is based on the principle that certain uses of otherwise copyrighted material should not be prohibited. The doctrine is necessary so that copyright protection does not offend other constitutional principles, such as freedom of speech and the press, as well as the Copyright Clause itself, which is intended to encourage expression. If copyright protection could be used to prohibit others from using the work constructively, such as commenting or reporting on the work, society would suffer. Therefore, courts have long applied this principle to certain uses of copyrighted works that are seen necessary for the betterment of society in relation to the work. § 107 of the 1976 Act codifies the fair use requirement:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
This section is not intended to limit the analysis to only the four listed factors (note the “shall include” language implying a non-exhaustive listing). Instead, a court should view the totality of the circumstances, but to fulfill the mandate from Congress, a court must give serious consideration to each of these factors, and no one factor is determinative. In reality, courts tend to focus on the four factors almost exclusively in making their decision. Non-transformative uses of the work and uses that have a negative impact on the market weigh particularly heavy against a finding of fair use. Also, complete reproductions tend not to be considered fair use. Procedurally, fair use is an affirmative defense that only comes into play after the plaintiff has established a prima facie case.


It is also important to cover at least the basics of copyright infringement. Basically, copyright infringement occurs whenever an unauthorized person violates one of the applicable exclusive rights provided in § 106 and is not entitled to one of the limitations provided in §§ 107-122. § 501 of the Act provides simply:

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
Wholesale (or literal) copying would obviously be infringement. However, even if one of the limitations does not apply, it can be very difficult to determine if infringement occurred. For instance, what if the alleged infringer used only a small portion of the work? What if only a portion of the work is copyright protected? What if the alleged infringer claims to have independently created the work? These issues point out that infringement cases are often much less clear than cases of wholesale takings.

Unfortunately, there is not a single framework that courts use to conduct an infringement analysis. Basically, there are two approaches.

  1. Some courts take a two-step approach in asking:

    1. Did the defendant have “access” to the work?
    2. If so, is the defendant’s work “substantially similar”?
  2. Other courts use a different approach:

    1. Does the defendant’s work evidence copying?

      1. Courts will presume copying if:

        1. Defendant had access to the work, and
        2. There is proof of some degree of similarity (sometimes referred to as probative similarity; different and less exacting standard than substantial similarity)
    2. If so, whether such copying amounts to an improper appropriation?

      1. Improper as to kind and amount:

        1. The defendant appropriated protected expression, and
        2. The intended audience (or ordinary observer) will find the two works substantially similar.
Most commentators seem to prefer the latter approach because it more fully considers each of the important factors, such as excluding protection for non-copyrightable portions of the work. The rest of this description will presume an analysis under this preferred approach. “Copying” in the first prong is almost always proven by circumstantial evidence. If “copying” is proven, then typically the burden is shifted to the defendant to prove no infringement under the second “improper appropriation” prong. To prove “access”, usually an “opportunity to see” is sufficient. Infringement can occur even if the taking was subconscious or unintentional since infringement is a form of strict liability.

Typically, the “ordinary observer” is treated as if the hypothetical person had ample time and measuring equipment, and if there is a mix protected and unprotected portions, then the person will be even more discerning. Experts are ordinarily excluded unless the subject matter is technical.

How does a court manage to separate the protected portions of the work? Again, two approaches: (1) a totality approach that focuses on the total concept and feel rather than on specific points of similarity, and (2) a subtractive approach that proceeds according to the following steps:

  1. The allegedly infringed work is analyzed to determine the parts that are protected,
  2. The unprotected parts are subtracted, and
  3. The fact finder examines for significant similarities between what remains of the allegedly infringed work and the allegedly infringing work.
The latter subtractive approach (originating in the 2nd Circuit) is preferred by most courts outside of the 9th Circuit. It is important to realize that different portions of the work may be subtracted when analyzing the different protectible aspects of a single work. The 2nd Circuit held in the 1930 Nichols v. Universal Pictures case that different levels of abstraction may exist and that each can be protected. This can be true with a wide variety of works, but takes on special importance in software cases as explained next.

Software Infringement

Special rules for infringement have developed in software cases. The 1992 Computer Associates International v. Altai, Inc. case provides the new approach. This case deals specifically with the issue of how much protection extends to the non-literal structure of a computer program by developing a specialized “substantially similar” test for software:

  1. Abstraction - ascertain each level of abstraction (source code up to overall structure/flow).
  2. Filtration - identify factors at each level that are not deserving of protection (ideas, processes, those dictated by efficiency or required for external compatibility, those taken from the public domain, etc.) and subtract them from consideration
  3. Comparison - compare the remaining “golden nugget(s)” to the allegedly infringing work. According to the 1993 Gates Rubber case, the 10th Circuit held that, in making the comparison, quality is more important than quantity.