FEIST Publications was a company that specialized in publishing the white pages all over the region of Kansas. Rural refused to license its pages to FEIST, so FEIST simply copied all of the white pages without Rural’s permission. Now some of the listings were altered, they were fake listings so Rural could know if anyone actually copied all of the names and numbers in the phone book because they purposely put them there to test to make sure that if anyone put that in their own white or yellow pages they would know.

So the Supreme Court had to decide whether the copyright in a telephone company’s directory protected the names, towns, and telephone numbers copied by another telephone directory company. The justices decided that the information in Rural’s directory was not copyrightable, it lacked originality. The information just didn’t show originality because the company didn’t organize or display the information in any original way. It was just the white pages, a list of names and phone numbers hence a list of facts.

The Court defined originality as requiring only that the work be independently created by the author and that is possess “at least some minimal degree of creativity.” often this is called a Modicum of creativity. The Court also mentioned that this was a very, very low bar, a work need only “possess some creative spark no matter how crude, humble or obvious it might be”.

In this case the court had to decide whether envelopes, forms and letters showed sufficient originality to be protected by Copyright Law. Magic Marketing created envelopes with the word, Telegram, Gift check enclosed and priority message contents require immediate attention and put them on a envelope. American Paper, a different company that sold the same items to their customers, prompting Magic Marketing to sue for copyright infringement over those specific words and phrases on an envelope.

Now in this case, the court ruled that Magic Marketing, because the envelopes and form letters did not exhibit a minimal form of creativity were not copyrightable. The forms using phrases like Telegram, Gift check enclosed were simply common stock phrases or words and listing the contents of an envelope on a package like a listing of ingredients is not protected by copyright regulations. Envelopes are not considered pictorial, graphic or sculptural if they fail to embody a minimal level of creativity.

The court held that short phrases and basic shapes (black stripe on a form letter) that do not exhibit minimal creativity are simply not protected by the law.

A designer tried to copyright a logo that he created for the New York Arrows Soccer Team. The logo consisted of four angled lines which form an arrow and the word arrows in cursive scripts below the arrow. The appeals court affirmed a lower court ruling that the design did not show sufficient creativity to be protected. In essence the problem was that the logo compromised of basic shapes, and that wasn’t enough to be copyrightable under the law.

The court dealt with whether the very basic shape of a Skyy Vodka bottle could be copyrightable. In that case, a photographer was hired to do promotional shots of vodka bottles. After he took the photos of the Skyy Vodka, the blue bottle, he retained the rights to those photos. Skyy was unhappy with those photos so they hired a new photographer who took some very similar photos. When the original photographer saw the new photos, that Skyy used his promotional materials, he said that they were almost identical to his own photos.

The court held that the photographer’s original shots of the vodka bottle were in fact original works of authorship entitled to copyright protection. The three photos here that met the FEIST threshold for copyrightablity because the author created them and there was at least some minimal degree of creativity in selecting the composition but this wasn’t the end for this case.

The case was appealed again, and this time it tested whether the shots used by Skyy Vodka actually infringed on the photographer’s copyright. The court explained that although photographs are copyrightable, in cases like this, the copyright protection is weak and limited by the doctrines of merge and scenes a faire. This is sometimes called a “thin copyright”.

Under the merger doctrine courts will not protect a copyrighted work from infringement if the idea underlying the work can only be expressed in one way. In such an instance, it’s said that the idea and expression merge and the shots used by Skyy Vodka did in fact look very similar to the photographer’s three original promotional shots because there’s only so many ways you an take a photograph of a vodka bottle and as the court pointed out these two sets of photos were as different as they could actually be given that the subject matter is going to be the same.

The lighting was different, the angles were different, the shadows and highlights were different as were the reflections in the background. The only constant was the bottle itself, so the original photographer couldn’t get a copyright on every time you took a photo of a Skyy Vodka bottle hence the court held that Skyy’s secondary photographs were not infringing of the first.

Marvin Gaye vs Robin Thicke was a case over the song Blurred Lines, where even though Marvin Gaye had passed away years ago, his family was still able to prosecute his copyrighted songs against Robin Thicke.

For corporate authorship, the expiration date is 95 years after publication or 120 years from the date of creation. However, once a copyright expires it falls into what’s called the public domain. Works in the public domain are not subject to copyright limitation which means that anyone can use the theme or the expression itself like the language, the words, the melody for a song or a movie or a novel that’s in the public domain for whatever purpose you want.

A court had to decide whether two similar photos in a park was an example of copyright infringement or just an example of two different ways of expressing the same idea. The original photographer, Lewis Sahuc took a picture of the New Orleans St. Louis Cathedral, framed by the Decatur Street Gate and shrouded in mist.

Another artist, Lee Tucker was an experienced painter who admired Sahuc’s photograph. Tucker took his own picture of the same subject matter, the New Orleans St. Louis Cathedral, framed by the Decatur Street Gate but when Tucker released his photograph, Sahuc sued Tucker for copyright infringement because the photographs looked very similar.

The court however sided with Tucker stating “It is obvious to the Court that the two photographs depict similar ideas. Ideas, however, are never copyrightable. Only the original expression of the those ideas is protected by Copyright Law”. Although the photos were of the same subject matter, both the photos expressed two different kinds of artistic expression such as one was black and white while the other was colored, they were both taken at different times, one was taken at dusk and the other at dawn and one had the cathedral shrouded in mist while the other didn’t.

However it would’ve been copyright infringement if instead of Tucker taking his own photo of the cathedral, he found the photo that Hook took and then took a photo or made a copy of that photo. That in fact would be copyright infringement because he is copying someone else’s work and he’s not making his own work of a similar subject.

Generally speaking, there’s no such thing as stealing someone’s idea, there is a limited scope however but it’s such a rare exception that it’s not even worth talking about.

The first case to flesh out the copyright ability of characters where the famous Judge Learned Hand, declined to give copyright protection to insufficiently developed stock characters. Anne Nichols was a playwright who came up with the screenplay about a classic Romeo & Juliet tale, where a Jewish man marries an Irish Catholic woman going against their family’s wishes. Universal did a similar theme where an Irish Catholic boy fell for a Jewish girl and both the screenplay and movie were comedies.

Nichols sued Universal for copyright infringement, suggesting that the film utilize similar story elements as the play that she created herself. Judge Hand ruled against Nichols, stating that her characters weren’t well developed other than being Jewish & Catholic. The ideas that the movie allegedly copied were universal concepts rather than specific characters.

he Ninth Circuit Court of Appeals came up with this test where the court actually held that Sam Spade of the famous Maltese Falcon story wasn’t that well-developed since he was just a vehicle for carrying the story forward. The Court denied copyrightablity since Spade was a “mere chessman in the game of storytelling.”

Many decades later, California District Court suggested that it was possible that the Ninth Circuit actually got the Sam Spade case wrong.

In this case the court had to decide whether Sylvester Stallone had stolen someone else’s idea for the plot of Rocky IV. Stallone was the writer and director of the original Rocky movie and the characters had always been his. However in the early 1980s, a screenwriter named James Anderson wrote an unsolicited 32-page treatment for the next Rocky movie. He met with MGM & Stallone himself, sharing the ideas.

Fast forward to 1984 when Stallone goes on the Today show to describe his ideas for his version of Rocky IV, Anderson watched the interview and thought it was obvious that Stallone had in essence stolen his ideas for the Rocky IV sequel. But Stallone wrote the script for Rocky for himself and did not credit Anderson or pay him any money. Anderson then sued for copyright infringement.

If Anderson had only described his idea for the movie to Stallone, there would be no case, because the idea has to be translated into a fixed, tangible format. Anderson’s 32-page treatment could be considered copyrightable, that’s almost certainly enough to meet the threshold for copyright protection as long as it was an original work. But that is where the rubber meets the road this case because the Court revisited the old Sam Spade case and held that all of the characters in the script were clearly delineated in extreme detail in the first three Rocky movies. They were all delineated by Stallone and Stallone himself had the copyright in the Rocky characters. The court wrote that the interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang and Paulie are all central to the three first Rocky movies.

Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. Anderson couldn’t copyright the story about the characters because they weren’t his to begin with.

The court also held that Anderson’s treatment which he pitched without being asked or hired essentially violated Stallone’s right to make derivative work from his existing characters. If you think this has implications for Fan Art, you are absolutely right which we’ll cover later.

You might also be wondering how Ryan Coogler was able to pitch a new Rocky movie called Creed to Stallone without running into the same problems. Coogler actually came up with a spin-off of Rocky that involved Apollo Creed’s son. He spent 2 years trying to convince Stallone to make what became the seventh film in the Rocky franchise.