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a restricted number of people and for a restricted purpose without a copyright notice. Those works would not be considered distributed to the public (i.e., published) and, therefore, not subject to the notice requirement. Although the notice requirement has been eliminated, and thus the most critical justification for the doctrine, the few cases dealing with publication since 1989 suggest that courts will continue to apply the doctrine of limited publication.

c. WORKS NOT PROTECTED

Certain works and subject matter are expressly excluded from protection under the Copyright Act, regardless of their originality, creativity and fixation. Titles, names, short phrases, and slogans generally do not enjoy copyright protection under the Copyright Act.84 Other material ineligible for copyright protection includes the

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See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952). Before the notice requirement was eliminated, the Copyright Act generally provided for the invalidation of the copyright in a work if copies of the work were distributed to the public, under the authority of the copyright owner, without a copyright notice. In virtually all instances where limited publication was applied, the distribution was noncommercial in nature.

83

See Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1451-54 (9th Cir. 1991) (distribution of personalized Oscar statuettes to select group of distinguished artists constituted limited publication); Lish v. Harper's Magazine Found., 807 F. Supp. 1090, 1102 (S.D.N.Y. 1992) (letter distributed to members of class remained unpublished).

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See 37 C.F.R. $ 202.1(a) (1994); see also, e.g., Takeall v. PepsiCo Inc., 29 U.S.P.Q.2d 1913, 1918 (4th Cir. 1993) (unpublished) (holding phrase "You Got the Right One, Uh-Huh" is not copyrightable and, thus, was not infringed by commercial using phrase "You Got the Right One Baby, Uh-Huh"). While short phrases may not be copyrightable standing alone, they may be protected as part of a larger, copyrighted work. See, e.g., Dawn Assocs. v. Links, 203 U.S.P.Q. 831, 835 (N.D. Ill. 1978) (holding phrase "When there is no room in hell ... the dead will walk the earth" to be an integral part of a copyrighted advertisement, and defendant's unauthorized use of it demonstrated likelihood of success on the merits of infringement suit); Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-85 (S.D.N.Y. 1991) (finding lyric "alone again" to be protected as part of a copyrighted work and infringed by defendant rap artist's "sampling"). Short phrases may also be eligible for trademark protection if used to identify goods or services.

utilitarian elements of industrial designs;& familiar symbols or designs; simple geometrical shapes; mere variations of typographic ornamentation, lettering or coloring; and common works considered public property, such as standard calendars, height and weight charts, and tape measures and rulers.

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Copyright protection also 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 even if it meets the criteria for protection. Thus, although a magazine article on how to tune a car engine is protected by copyright, that protection extends only to the expression of the ideas, facts and procedures in the article, not the ideas, facts and procedures themselves, no matter how creative or original they may be. Anyone may "use" the ideas, facts and procedures in the article to tune an engine -- or to write another article on the same subject. What may not be taken is the expression used by the original author to describe or explain those ideas, facts and procedures.

85

In Mazer v. Stein, the Supreme Court held that works of art which are incorporated into the design of useful articles, but which can stand by themselves as art works separate from the useful articles, are copyrightable. See 347 U.S. 201, 214-17 (1954). See also 17 U.S.C. § 101 (defining "useful article" as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information); 17 U.S.C. $ 101 in the definition of "pictorial, graphic, and sculptural works" noting 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"). The House Report indicates that the required separability may be physical or conceptual. See HOUSE REPORT at 55, reprinted in 1976 U.S.C.C.A.N. 5668; see also Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).

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17 U.S.C. S 102(b) (1988); see Feist, supra note 36, at 359 ("facts contained in existing works may be freely copied"); Harper & Row, supra note 34, at 547 ("no author may copyright facts or ideas"). 87

The ideas are not protected; the expression is. Baker v. Seldon, 101 U.S.

Copyright does not prevent subsequent users
from copying from a prior author's work those
constituent elements that are not original -- for
example ... facts or materials in the public
domain -- as long as such use does not unfairly
appropriate the author's original contributions.88

This idea/expression dichotomy "assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. Although it "may seem unfair that much of the fruit of the [author's) labor may be used by others without compensation," it is "a constitutional requirement" -- the "means by which copyright advances the progress of science and art."90

1189

As a matter of law, copyright protection generally is not extended under the Copyright Act to works of the U.S.

99, 103 (1879); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir.), cert. denied, 115 S. Ct. 675 (1994); see also Harper do Row, supra note 34, at 547-48 ("copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality"). The line between idea and expression is not easy to draw. The distinction is not that one is fixed and the other is not they are both fixed in the copyrighted work of authorship. At some point, the idea becomes detailed enough to constitute expression. Judge Learned Hand explained:

Upon any work ... a great number of patterns of increasing
generality will fit equally well, as more and more of the incident is
left out. The last may perhaps be no more than the most general
statement of what the (work] is about, and at times might consist
only of its title; but there is a point in this series of abstractions
where they are no longer protected, since otherwise the [author]
could prevent the use of his "ideas," to which, apart from their

expression, property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

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89

Feist, supra note 36, at 349-50 (citing Harper & Row, supra note 34, at 556-57).

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Government." Therefore, nearly all works of the U.S. Government -- including this Report -- may be reproduced, distributed, adapted, publicly performed and publicly displayed without infringement liability in the United States under its copyright laws. While the Copyright Act leaves most works created by the U.S. Government unprotected under U.S. copyright laws, Congress did not intend for the section to have any effect on the protection of U.S. government works abroad.

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d. CATEGORIES OF PROTECTIBLE WORKS

The Copyright Act enumerates eight broad categories of protectible subject matter:

(1) literary works;

(2) musical works, including any accompanying words; (3) dramatic works, including any accompanying

music;

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17 U.S.C. $ 105 (1988). There are limited exceptions to this noncopyrightability provision. For instance, the Secretary of Commerce is authorized to secure copyright on behalf of the United States "in all or any part of any standard reference data which he prepares or makes available" under the Standard Reference Data Program. See 15 U.S.C. $ 290(e) (1988). Works of the U.S. Postal Service, such as designs on postage stamps, are also copyrightable by the Postal Service. See HOUSE REPORT at 60, reprinted in 1976 U.S.C.C.A.N. 5674 ("the Postal Service could ... use the copyright law to prevent the reproduction of postage stamp designs for private or commercial non-postal services"). Copyright interests transferred to the U.S. Government by assignment, bequest or otherwise may be held and enforced by it. See 17 U.S.C. S 105 (1988).

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A work of the U.S. Government is a work "prepared by an officer or employee of the United States Government as part of that person's official duties." 17 U.S.C. S 101 (definition of "work of the United States Government"). Although the wording of this definition is not identical to that of a "work made for hire," the concepts "are intended to be construed in the same way." HOUSE REPORT at 58, reprinted in 1976 U.S.C.C.A.N. 5672. See discussion of works made for hire infra notes 134-36 and accompanying text.

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See HOUSE REPORT at 59, reprinted in 1976 U.S.C.C.A.N. 5672.

(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.

LITERARY WORKS

Although many categories of works will be available via the NII, the majority of works currently available on computer networks such as the Internet are literary works.

"Literary works" are works, other than
audiovisual works, expressed in words, numbers,
or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects,
such as books, periodicals, manuscripts,
phonorecords, films, tapes, disks, or cards, in

which they are embodied.” Literary works include computer programs, articles, novels, directories, computer databases, essays, catalogs, poetry, dictionaries, encyclopedias, and other reference materials.97

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17 U.S.C. S 101 (1988) (definition of "literary works"). 96

Following the recommendation of CONTU, Congress amended the Copyright Act in 1980 to recognize that computer programs are protected works. See Act of December 12, 1980, Pub. L. 96-517, 1980 U.S.C.C.A.N. (94 Stat.) 3015, 3028. "Computer programs" are defined as a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." See 17 U.S.C. S 101 (1988 & Supp. V 1993).

97

See HOUSE REPORT at 54, reprinted in 1976 U.S.C.C.A.N. 5667.

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