History of inventions and copyright protections

Terry Fischer Disaggregation Speech

Federal Copyright Law originates in a 1790 statute, adopted under the auspices of Article I, Section 8, Clause 8 of the Constitution Only 3 kinds of works were protected under the original statute: “Books, maps, charts” [later subsumed in general category of “all the writings of an author” (1909) Over the course of the nineteenth and twentieth century, Congress and the courts cooperated in expanding the set of protected creations “Prints” are added by statute in 1802 “Musical Compositions” in 1831 “Dramatic Works” In effect, were added to the galaxy by an 1856 statute granting the owners of copyrights in books the right to control public performance of their works – the only form of protection truly valuable to playwrights An extension confirmed in subsequent statutes “Photographs” were added by statute 1865

• In the 1883 Burrow-Giles case, the SCt rejected a constitutional challenge to this provision, but only because the posed, studio photo of Oscar Wilde at issue in the case was, in the court’s judgment a “useful, new, harmonious, characteristic, and graceful picture.”

Gradually the aesthetic standard implicit in this judgment was softened, and copyright protection was tacitly extended to photos of all sorts So nowadays, not only is xeroxing a landscape photograph clearly illegal, but even taking a substantially similar photo may give rise to an infringement claim

• Arguably, for example, Ansel Adams famous photograph of the snake river is infringed by this recent calendar picture

Photographs can even be infringed by copies in other media For example, in the judgment of the Second Circuit,

• this photo was infringed by
• this sculpture, despite the mockery plainly evident in the latter

“paintings; drawings; and chromos” were added to the statute in 1870 as were “statues”; meaning 3-dimensional works of fine art and “artistic models or designs” (1870) later subsumed in the broader category of “works of art” and “reproductions of works of arts” (1909) Around the turn of the century, Advertisements were accepted into the fold (1903) During the 19th c., courts had generally been hostile to the extension of copyright to ads – on the ground that they did nothing to “stimulate original investigation whether in literature, science or art, for the betterment of the people.”: [Bracha: “In J.L. Mott Iron Works, for example, the court stated that the copyright law “sought to It found that plaintiff’s “work” was “a mere priced catalogue illustrated with pictures of wares offered for sale” --L. Mott Iron Works v. Clow, 82 F. 316, 318-19 (7th Cir. 1897); See also: Baker v. Selden, 101 U.S. 105-107

• This position is famously rejected by Justice Holmes in Bleistein (1903), which extended copyright protection to a circus poster:

Holmes reasoned: “A picture is none the less a picture, and none the less a subject of copyright that it is used for an advertisement.” Motion Pictures are invented by Thomas Edison in the late 19th c. By 1903, an intermediate appellate court had recognized them as copyrightable subject matter Edison v. Lubin, 122 F. 240 (3d Cir. 1903). “Lectures, sermons & addresses” are added to the list by statute in 1909

• Growth continues in the 20th century

“Fictional characters” and “plots” are recognized by judicial decisions as objects of protection

An 1948 Copyright Office regulation, construing a provision of the 1909 statute abandoning the restriction to “fine art,” upheld by the SCt in Mazer (1954) extended copyright protection to useful objects, so long as their aesthetic and functional aspects were “conceptually separable” “Sound recordings” – as distinct from the compositions they embody – were added in 1972

Pantomimes and Choreographic works were formally added as part of the 1976 general reform of the statute Software, formally, in 1978

Finally, Architecture was grudgingly given special protection by statute in 1990, in response to the United States’ belated accession to the Berne Convention

• Two gradual conceptual shifts underlie this steady expansion of the zone of coverage

The first, nicely traced by Oren Bracha in his dissertation in progress, is a movement from a conception of copyright as “trade specific regulation” to a conception that sees copyright as founded on the general principle of the right of creators to control their original works A change partially completed in the 1909 general reform of the Copyright Statute and fully completed in the 1976 Reform The second, emphasized by Peter Jaszi, is a change in what copyright is thought to protect: from the text to the “work” At the start of the 19th c., lawyers and Js thought that copyright law protected the sequence of words used in a book against verbatim reproduction By the early 20th century century, they thought it shielded the market value of the underlying work no matter how expressed The effect of this reconceptualization was to render illegal many forms of unauthorized use – including translations, abridgments, and motion-picture adaptations