Article I, Section 8, Clause 8:

[The Congress shall have Power . . . ] 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.

In 1834, the Supreme Court established in its first copyright case, Wheaton v. Peters, that federal copyright is purely a creation of statutory law—not federal common law.1 Wheaton arose out of the reporting of the decisions of the Supreme Court itself; Wheaton, who published the annotated decisions of the Court from 1816 to 1827, sued a competing reporter.2 Because it appeared that Wheaton had not complied with all of the statutory requirements for a copyright, he alternatively asserted a common law right in his publications.3

The Supreme Court held that although common law rights may exist in an unpublished manuscript under state law, after publication, federal protection for the work was available “if at all, under the acts of Congress.” 4 The Court rejected the argument that the word “secure” in the Intellectual Property (IP) Clause was intended not “to originate a right, but to protect one already in existence.” 5 Thus, copyright did not vest in the author unless he substantially complied with the statutory requirements imposed by Congress.6

The IP Clause empowers Congress to grant copyright to the “Authors” of “Writings.” The term “Writings” has long been interpreted more broadly than merely “script or printed material.” 7 In 1884, the Supreme Court held in Burrow-Giles Lithographic Co. v. Sarony that Congress could constitutionally provide for copyright in photography.8 The Court defined an “Author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” 9 “Writings,” in turn, encompassed “all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given . . . expression.” 10 Applying these definitions, the Court had “no doubt” that the IP Clause was broad enough to authorize copyright in photographs.11 Indeed, under current law, copyright generally covers any original work of authorship, including literary works; musical works; dramatic works; choreography; audiovisual works; pictorial, graphic, and sculptural works; sound recordings; and architectural works.12

Having established that photography was copyrightable in general, Burrow-Giles turned to whether the photograph at issue possessed the requisite level of originality. The subject of the lawsuit was a portrait of Oscar Wilde taken by the photographer Napoleon Sarony.13 The Court noted that Sarony conceived the portrait, posed Wilde in front of the camera, and arranged the subject and the lighting, all to evoke a desired expression.14 On these facts, the Court concluded the photograph was more than a “mechanical reproduction,” but “an original work” that could be copyrighted.15 Indeed, so long as a work is original—and meets all statutory requirements—copyright is available irrespective of the aesthetic or social value of the work.16

A century later, in Feist Publications v. Rural Telephone Service Co., the Supreme Court confirmed that originality is a constitutional requirement and more precisely defined what originality requires.17 The issue in Feist was whether a telephone directory listing the names, addresses, and telephone numbers of people in a particular geographic area was copyrightable.18 The Supreme Court held that originality, the “sine qua non of copyright,” 19 requires “that the work was independently created by the author” and “that it possesses at least some minimal degree of creativity.” 20 On this standard, facts—such as names and telephone numbers arranged alphabetically—are neither original nor copyrightable because facts “do not owe their origin to an act of authorship.” 21 That said, a compilation of facts may be copyrightable, but only if the selection and arrangement of facts is independently created and minimally creative.22 Because the telephone directory in Feist simply listed names and telephone numbers alphabetically by surname, it lacked the minimal creativity necessary for copyright.23

Along with being original, a copyrightable work must be recorded or embodied in some physical form to be a copyrightable “Writing.” Current law requires that the work be “fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated.” 24 Although the Supreme Court has never squarely held that fixation is a constitutional requirement, it appears to be implicit in the Court’s definition of “Writings” as “any physical rendering of the fruits of creative [activity].” 25 Courts have thus generally assumed that, under the IP Clause, copyright cannot protect unfixed works, such as unrecorded live musical performances.26

Footnotes

1

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).

2

Id. at 593–95.

3

Id. at 654.

4

Id. at 661, 663. Similarly, in the patent context, the Court has understood the Intellectual Property (IP) Clause to be “permissive,” such that the scope of patent rights is determined by the statutory language enacted pursuant to the IP Clause, not the Clause itself. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972).

5

Wheaton, 33 U.S. at 661.

6

Id. at 661, 665.

7

Goldstein v. California, 412 U.S. 546, 561 (1973).

8

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).

9

Id. at 58 (quoting Joseph E. Worcester’s Dictionary of the English Language).

10

Id. at 58.

11

Id.

12

17 U.S.C. § 102(a).

13

Burrow-Giles, 111 U.S. at 54–55.

14

Id. at 60.

15

Id. at 59–60.

16

See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250–52 (1903) (Holmes, J.); see also Mitchell Bros. Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 858–60 (5th Cir. 1979) (obscene material may be copyrighted).

17

Feist Publ’ns v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).

18

Id. at 343–44.

19

Sine qua non is Latin for “without which not,” meaning “[a]n indispensable condition or thing.” Sine qua non, Black’s Law Dictionary (11th ed. 2019).

20

Feist, 499 U.S. at 345.

21

Id. at 347.

22

Id. at 348.

23

Id. at 362–63.

24

17 U.S.C. § 102(a).

25

See Goldstein v. California, 412 U.S. 546, 561 (1973) (emphasis added).

26

See, e.g., United States v. Martignon, 492 F.3d 140, 144 (2d Cir. 2007) ( “[T]he government concedes [that] Congress could not have enacted [protection for live musical performances] pursuant to the Copyright Clause.” ); United States v. Moghadam, 175 F.3d 1269, 1277 (11th Cir. 1999) (assuming that “the Copyright Clause could not sustain [anti-bootlegging statute] because live performances, being unfixed, are not encompassed by the term ‘Writings’” ). Both Martignon and Moghadam ultimately upheld the anti-bootlegging laws at issue under Congress’s Commerce Clause authority. Martignon, 492 U.S. F.3d at 152–53; Moghadam, 175 F.3d at 1282.