§ 102. — Subject matter of copyright: In general.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC102]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:
(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;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(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.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2544; Pub.
L. 101-650, title VII, Sec. 703, Dec. 1, 1990, 104 Stat. 5133.)
Historical and Revision Notes
house report no. 94-1476
Original Works of Authorship. The two fundamental criteria of
copyright protection--originality and fixation in tangible form are
restated in the first sentence of this cornerstone provision. The phrase
``original works or 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. This
standard does not include requirements of novelty, ingenuity, or
esthetic merit, and there is no intention to enlarge the standard of
copyright protection to require them.
In using the phrase ``original works of authorship,'' rather than
``all the writings of an author'' now in section 4 of the statute
[section 4 of former title 17], the committee's purpose is to avoid
exhausting the constitutional power of Congress to legislate in this
field, and to eliminate the uncertainties arising from the latter
phrase. Since the present statutory language is substantially the same
as the empowering language of the Constitution [Const. Art. I, Sec. 8,
cl. 8], a recurring question has been whether the statutory and the
constitutional provisions are coextensive. If so, the courts would be
faced with the alternative of holding copyrightable something that
Congress clearly did not intend to protect, or of holding
constitutionally incapable of copyright something that Congress might
one day want to protect. To avoid these equally undesirable results, the
courts have indicated that ``all the writings of an author'' under the
present statute is narrower in scope than the ``writings'' of
``authors'' referred to in the Constitution. The bill avoids this
dilemma by using a different phrase--``original works of authorship''--
in characterizing the general subject matter of statutory copyright
protection.
The history of copyright law has been one of gradual expansion in
the types of works accorded protection, and the subject matter affected
by this expansion has fallen into two general categories. In the first,
scientific discoveries and technological developments have made possible
new forms of creative expression that never existed before. In some of
these cases the new expressive forms--electronic music, filmstrips, and
computer programs, for example--could be regarded as an extension of
copyrightable subject matter Congress had already intended to protect,
and were thus considered copyrightable from the outset without the need
of new legislation. In other cases, such as photographs, sound
recordings, and motion pictures, statutory enactment was deemed
necessary to give them full recognition as copyrightable works.
Authors are continually finding new ways of expressing themselves,
but it is impossible to foresee the forms that these new expressive
methods will take. The bill does not intend either to freeze the scope
of copyrightable subject matter at the present stage of communications
technology or to allow unlimited expansion into areas completely outside
the present congressional intent. Section 102 implies neither that that
subject matter is unlimited nor that new forms of expression within that
general area of subject matter would necessarily be unprotected.
The historic expansion of copyright has also applied to forms of
expression which, although in existence for generations or centuries,
have only gradually come to be recognized as creative and worthy of
protection. The first copyright statute in this country, enacted in
1790, designated only ``maps, charts, and books''; major forms of
expression such as music, drama, and works of art achieved specific
statutory recognition only in later enactments. Although the coverage of
the present statute is very broad, and would be broadened further by the
explicit recognition of all forms of choreography, there are
unquestionably other areas of existing subject matter that this bill
does not propose to protect but that future Congresses may want to.
Fixation in Tangible Form. As a basic condition of copyright
protection, the bill perpetuates the existing requirement that a work be
fixed in a ``tangible medium of expression,'' and adds that this medium
may be one ``now known or later developed,'' and that the fixation is
sufficient if the work ``can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.''
This broad language is intended to avoid the artificial and largely
unjustifiable distinctions, derived from cases such as White-Smith
Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) [28 S.Ct. 319, 52 L.Ed.
655], under which statutory copyrightability in certain cases has been
made to depend upon the form or medium in which the work is fixed. Under
the bill it makes no difference what the form, manner, or medium of
fixation may be--whether it is in words, numbers, notes, sounds,
pictures, or any other graphic or symbolic indicia, whether embodied in
a physical object in written, printed, photographic, sculptural,
punched, magnetic, or any other stable form, and whether it is capable
of perception directly or by means of any machine or device ``now known
or later developed.''
Under the bill, the concept of fixation is important since it not
only determines whether the provisions of the statute apply to a work,
but it also represents the dividing line between common law and
statutory protection. As will be noted in more detail in connection with
section 301, an unfixed work of authorship, such as an improvisation or
an unrecorded choreographic work, performance, or broadcast, would
continue to be subject to protection under State common law or statute,
but would not be eligible for Federal statutory protection under section
102.
The bill seeks to resolve, through the definition of ``fixation'' in
section 101, the status of live broadcasts--sports, news coverage, live
performances of music, etc.--that are reaching the public in unfixed
form but that are simultaneously being recorded. When a football game is
being covered by four television cameras, with a director guiding the
activities of the four cameramen and choosing which of their electronic
images are sent out to the public and in what order, there is little
doubt that what the cameramen and the director are doing constitutes
``authorship.'' The further question to be considered is whether there
has been a fixation. If the images and sounds to be broadcast are first
recorded (on a video tape, film, etc.) and then transmitted, the
recorded work would be considered a ``motion picture'' subject to
statutory protection against unauthorized reproduction or retransmission
of the broadcast. If the program content is transmitted live to the
public while being recorded at the same time, the case would be treated
the same; the copyright owner would not be forced to rely on common law
rather than statutory rights in proceeding against an infringing user of
the live broadcast.
Thus, assuming it is copyrightable--as a ``motion picture'' or
``sound recording,'' for example--the content of a live transmission
should be regarded as fixed and should be accorded statutory protection
if it is being recorded simultaneously with its transmission. On the
other hand, the definition of ``fixation'' would exclude from the
concept purely evanescent or transient reproductions such as those
projected briefly on a screen, shown electronically on a television or
other cathode ray tube, or captured momentarily in the ``memory'' of a
computer.
Under the first sentence of the definition of ``fixed'' in section
101, a work would be considered ``fixed in a tangible medium of
expression'' if there has been an authorized embodiment in a copy or
phonorecord and if that embodiment ``is sufficiently permanent or
stable'' to permit the work ``to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.'' The second
sentence makes clear that, in the case of ``a work consisting of sounds,
images, or both, that are being transmitted,'' the work is regarded as
``fixed'' if a fixation is being made at the same time as the
transmission.
Under this definition ``copies'' and ``phonorecords'' together will
comprise all of the material objects in which copyrightable works are
capable of being fixed. The definitions of these terms in section 101,
together with their usage in section 102 and throughout the bill,
reflect a fundamental distinction between the ``original work'' which is
the product of ``authorship'' and the multitude of material objects in
which it can be embodied. Thus, in the sense of the bill, a ``book'' is
not a work of authorship, but is a particular kind of ``copy.'' Instead,
the author may write a ``literary work,'' which in turn can be embodied
in a wide range of ``copies'' and ``phonorecords,'' including books,
periodicals, computer punch cards, microfilm, tape recordings, and so
forth. It is possible to have an ``original work of authorship'' without
having a ``copy'' or ``phonorecord'' embodying it, and it is also
possible to have a ``copy'' or ``phonorecord'' embodying something that
does not qualify as an ``original work of authorship.'' The two
essential elements--original work and tangible object--must merge
through fixation in order to produce subject matter copyrightable under
the statute.
Categories of Copyrightable Works. The second sentence of section
102 lists seven broad categories which the concept of ``works of
authorship'' is said to ``include''. The use of the word ``include,'' as
defined in section 101, makes clear that the listing is ``illustrative
and not limitative,'' and that the seven categories do not necessarily
exhaust the scope of ``original works of authorship'' that the bill is
intended to protect. Rather, the list sets out the general area of
copyrightable subject matter, but with sufficient flexibility to free
the courts from rigid or outmoded concepts of the scope of particular
categories. The items are also overlapping in the sense that a work
falling within one class may encompass works coming within some or all
of the other categories. In the aggregate, the list covers all classes
of works now specified in section 5 of title 17 [section 5 of former
title 17]; in addition, it specifically enumerates ``pantomimes and
choreographic works''.
Of the seven items listed, four are defined in section 101. The
three undefined categories--``musical works,'' ``dramatic works,'' and
``pantomimes and choreographic works''--have fairly settled meanings.
There is no need, for example, to specify the copyrightability of
electronic or concrete music in the statute since the form of a work
would no longer be of any importance, nor is it necessary to specify
that ``choreographic works'' do not include social dance steps and
simple routines.
The four items defined in section 101 are ``literary works,''
``pictorial, graphic, and sculptural works,'' ``motion pictures and
audiovisual works'', and ``sound recordings''. In each of these cases,
definitions are needed not only because the meaning of the term itself
is unsettled but also because the distinction between ``work'' and
``material object'' requires clarification. The term ``literary works''
does not connote any criterion of literary merit or qualitative value:
it includes catalogs, directories, and similar factual, reference, or
instructional works and compilations of data. It also includes computer
data bases, and computer programs to the extent that they incorporate
authorship in the programmer's expression of original ideas, as
distinguished from the ideas themselves.
Correspondingly, the definition of ``pictorial, graphic, and
sculptural works'' carries with it no implied criterion of artistic
taste, aesthetic value, or intrinsic quality. The term is intended to
comprise not only ``works of art'' in the traditional sense but also
works of graphic art and illustration, art reproductions, plans and
drawings, photographs and reproductions of them, maps, charts, globes,
and other cartographic works, works of these kinds intended for use in
advertising and commerce, and works of ``applied art.'' There is no
intention whatever to narrow the scope of the subject matter now
characterized in section 5(k) [section 5(k) of former title 17] as
``prints or labels used for articles of merchandise.'' However, since
this terminology suggests the material object in which a work is
embodied rather than the work itself, the bill does not mention this
category separately.
In accordance with the Supreme Court's decision in Mazer v. Stein,
347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. 630, rehearing denied 74
S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], works of ``applied art''
encompass all original pictorial, graphic, and sculptural works that are
intended to be or have been embodied in useful articles, regardless of
factors such as mass production, commercial exploitation, and the
potential availability of design patent protection. The scope of
exclusive rights in these works is given special treatment in section
113, to be discussed below.
The Committee has added language to the definition of ``pictorial,
graphic, and sculptural works'' in an effort to make clearer the
distinction between works of applied art protectable under the bill and
industrial designs not subject to copyright protection. The declaration
that ``pictorial, graphic, and sculptural works'' include ``works of
artistic craftsmanship insofar as their form but not their mechanical or
utilitarian aspects are concerned'' is classic language; it is drawn
from Copyright Office regulations promulgated in the 1940's and
expressly endorsed by the Supreme Court in the Mazer case.
The second part of the amendment states that ``the design of a
useful article * * * shall be considered a pictorial, graphic, or
sculptural work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that can be
identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article.'' A ``useful article'' is
defined as ``an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to convey
information.'' This part of the amendment is an adaptation of language
added to the Copyright Office Regulations in the mid-1950's in an effort
to implement the Supreme Court's decision in the Mazer case.
In adopting this amendatory language, the Committee is seeking to
draw as clear a line as possible between copyrightable works of applied
art and uncopyrighted works of industrial design. A two-dimensional
painting, drawing, or graphic work is still capable of being identified
as such when it is printed on or applied to utilitarian articles such as
textile fabrics, wallpaper, containers, and the like. The same is true
when a statue or carving is used to embellish an industrial product or,
as in the Mazer case, is incorporated into a product without losing its
ability to exist independently as a work of art. On the other hand,
although the shape of an industrial product may be aesthetically
satisfying and valuable, the Committee's intention is not to offer it
copyright protection under the bill. Unless the shape of an automobile,
airplane, ladies' dress, food processor, television set, or any other
industrial product contains some element that, physically or
conceptually, can be identified as separable from the utilitarian
aspects of that article, the design would not be copyrighted under the
bill. The test of separability and independence from ``the utilitarian
aspects of the article'' does not depend upon the nature of the design--
that is, even if the appearance of an article is determined by aesthetic
(as opposed to functional) considerations, only elements, if any, which
can be identified separately from the useful article as such are
copyrightable. And, even if the three-dimensional design contains some
such element (for example, a carving on the back of a chair or a floral
relief design on silver flatware), copyright protection would extend
only to that element, and would not cover the over-all configuration of
the utilitarian article as such.
A special situation is presented by architectural works. An
architect's plans and drawings would, of course, be protected by
copyright, but the extent to which that protection would extend to the
structure depicted would depend on the circumstances. Purely
nonfunctional or monumental structures would be subject to full
copyright protection under the bill, and the same would be true of
artistic sculpture or decorative ornamentation or embellishment added to
a structure. On the other hand, where the only elements of shape in an
architectural design are conceptually inseparable from the utilitarian
aspects of the structure, copyright protection for the design would not
be available.
The Committee has considered, but chosen to defer, the possibility
of protecting the design of typefaces. A ``typeface'' can be defined as
a set of letters, numbers, or other symbolic characters, whose forms are
related by repeating design elements consistently applied in a
notational system and are intended to be embodied in articles whose
intrinsic utilitarian function is for use in composing text or other
cognizable combinations of characters. The Committee does not regard the
design of typeface, as thus defined, to be a copyrightable ``pictorial,
graphic, or sculptural work'' within the meaning of this bill and the
application of the dividing line in section 101.
Enactment of Public Law 92-140 in 1971 [Pub. L. 92-140, Oct. 15,
1971, 85 Stat. 391, which amended sections 1, 5, 19, 20, 26, and 101 of
former title 17, and enacted provisions set out as a note under section
1 of former title 17] marked the first recognition in American copyright
law of sound recordings as copyrightable works. As defined in section
101, copyrightable ``sound recordings'' are original works of authorship
comprising an aggregate of musical, spoken, or other sounds that have
been fixed in tangible form. The copyrightable work comprises the
aggregation of sounds and not the tangible medium of fixation. Thus,
``sound recordings'' as copyrightable subject matter are distinguished
from ``phonorecords,'' the latter being physical objects in which sounds
are fixed. They are also distinguished from any copyrighted literary,
dramatic, or musical works that may be reproduced on a ``phonorecord.''
As a class of subject matter, sound recordings are clearly within
the scope of the ``writings of an author'' capable of protection under
the Constitution [Const. Art. I, Sec. 8, cl. 8], and the extension of
limited statutory protection to them was too long delayed. Aside from
cases in which sounds are fixed by some purely mechanical means without
originality of any kind, the copyright protection that would prevent the
reproduction and distribution of unauthorized phonorecords of sound
recordings is clearly justified.
The copyrightable elements in a sound recording will usually, though
not always, involve ``authorship'' both on the part of the performers
whose performance is captured and on the part of the record producer
responsible for setting up the recording session, capturing and
electronically processing the sounds, and compiling and editing them to
make the final sound recording. There may, however, be cases where the
record producer's contribution is so minimal that the performance is the
only copyrightable element in the work, and there may be cases (for
example, recordings of birdcalls, sounds of racing cars, et cetera)
where only the record producer's contribution is copyrightable.
Sound tracks of motion pictures, long a nebulous area in American
copyright law, are specifically included in the definition of ``motion
pictures,'' and excluded in the definition of ``sound recordings.'' To
be a ``motion picture,'' as defined, requires three elements: (1) a
series of images, (2) the capability of showing the images in certain
successive order, and (3) an impression of motion when the images are
thus shown. Coupled with the basic requirements of original authorship
and fixation in tangible form, this definition encompasses a wide range
of cinematographic works embodied in films, tapes, video disks, and
other media. However, it would not include: (1) unauthorized fixations
of live performances or telecasts, (2) live telecasts that are not fixed
simultaneously with their transmission, or (3) filmstrips and slide sets
which, although consisting of a series of images intended to be shown in
succession, are not capable of conveying an impression of motion.
On the other hand, the bill equates audiovisual materials such as
filmstrips, slide sets, and sets of transparencies with ``motion
pictures'' rather than with ``pictorial, graphic, and sculptural
works.'' Their sequential showing is closer to a ``performance'' than to
a ``display,'' and the definition of ``audiovisual works,'' which
applies also to ``motion pictures,'' embraces works consisting of a
series of related images that are by their nature, intended for showing
by means of projectors or other devices.
Nature of Copyright. Copyright does not preclude others from using
the ideas or information revealed by the author's work. It pertains to
the literary, musical, graphic, or artistic form in which the author
expressed intellectual concepts. Section 102(b) makes clear that
copyright protection does not 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.
Some concern has been expressed lest copyright in computer programs
should extend protection to the methodology or processes adopted by the
programmer, rather than merely to the ``writing'' expressing his ideas.
Section 102(b) is intended, among other things, to make clear that the
expression adopted by the programmer is the copyrightable element in a
computer program, and that the actual processes or methods embodied in
the program are not within the scope of the copyright law.
Section 102(b) in no way enlarges or contracts the scope of
copyright protection under the present law. Its purpose is to restate,
in the context of the new single Federal system of copyright, that the
basic dichotomy between expression and idea remains unchanged.
Amendments
1990--Subsec. (a)(8). Pub. L. 101-650 added par. (8).
Effective Date of 1990 Amendment
Amendment by Pub. L. 101-650 applicable to any architectural work
created on or after Dec. 1, 1990, and any architectural work, that, on
Dec. 1, 1990, is unconstructed and embodied in unpublished plans or
drawings, except that protection for such architectural work under this
title terminates on Dec. 31, 2002, unless the work is constructed by
that date, see section 706 of Pub. L. 101-650, set out as a note under
section 101 of this title.
Section Referred to in Other Sections
This section is referred to in sections 103, 104, 301 of this title;
title 19 section 2242.
