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384 COPYRIGHT’S “REACH”: INFRINGEMENT
In this chapter we will focus largely on two of the rights of § 106—the reproduction and
derivative works rights. We will ask, when does copying constitute infringement? (The
questions of whether something is a public performance, public display, or distribution are
no less vexed. We just do not have space for them here, though in the next chapter you will
be reading a fascinating case about whether “in-line linking” and “framing” by an image
search engine implicate the public display right.)
It may be helpful to remember this: the discussion of copyrightable subject matter
also suffuses the discussion of copyright infringement. This is not a situation in which
some areas are completely public and not subject to property rights (a Hawaiian beach, a
white pages telephone directory) while others (your farm, a song) are completely private
and completely owned. This is more like a situation in which even the farm that is clearly
private property has public rights of way running through it, rights of overflight running
over it. Property and commons exist in a tight braid, not as two separate plots on a map.
Feist tells us that “To establish infringement, two elements must be proven: (1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that
are original.” There must be copying. It must be enough copying. And it must be copying
of material subject to the copyright—the ideas and facts in a work are not. But how do
those abstractions work themselves out in concrete cases?
a.) The Idea/Expression Distinction in Infringement Analysis
Nichols v. Universal Pictures Corp. et al.
45 F.2d 119 (2d Cir. 1930)
L. HAND, Circuit Judge.
The plaintiff is the author of a play, “Abie’s Irish Rose,” which it may be assumed
was properly copyrighted under
section five, subdivision (d), of the
Copyright Act, 17 USCA § 5(d). The
defendant produced publicly a motion
picture play, “The Cohens and
The Kellys,” which the plaintiff alleges
was taken from it. As we think
the defendant’s play too unlike the
plaintiff’s to be an infringement, we
may assume, arguendo, that in some
details the defendant used the
plaintiff’s play, as will subsequently
appear, though we do not so decide.
It therefore becomes necessary to
give an outline of the two plays.
“Abie’s Irish Rose” presents a
Jewish family living in prosperous
circumstances in New York. The father,
a widower, is in business as a
merchant, in which his son and only
Abie’s Irish Rose image information available at
http://en.wikipedia.org/wiki/File:Abiesirish.jpg. The
Cohens and the Kellys image information available at
http://en.wikipedia.org/wiki/File:Poster_of_the_movie_The
_Cohens_and_Kellys.jpg.