1 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright � 2.18[E] (2003).
2 See Stanley F. Birch, Copyright Protection for Attorney Work Product: Practical and Ethical Considerations, 10 J. Intell. Prop. L. 255, 256 (2003); Janet L. Conley, Milberg Weiss Tries to Nail Class Action Imitators, http://www.law.com/jsp/article.jsp?id=1036630458145 (Nov. 20, 2002).
3 See Conley, supra note 2. It is not necessary to register works to obtain copyright protection, nor is it necessary to affix a copyright notice, although taking these actions makes additional remedies available. See Copyright Act of 1976, 17 U.S.C. � 408 (2000).
4 See Conley, supra note 2.
5 See infra notes 214–317 and accompanying text.
6 See infra notes 7–10 and accompanying text.
7 See Birch, supra note 2, at 257.
8 See Birch, supra note 2, at 257; Conley, supra note 2.
9 See Birch, supra note 2, at 257; Conley, supra note 2.
10 See Conley, supra note 2.
11 U.S. Const. art. I, � 8, cl. 8.
12 17 U.S.C. � 102(a) (2000). The Copyright Act sets forth that
(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.
Id. � 102(a)–(b).
13 See Conley, supra note 2.
14 See 17 U.S.C. � 102; Birch, supra note 2, at 258; Conley, supra note 2.
15 See infra notes 22–317 and accompanying text.
16 See infra notes 22–30 and accompanying text.
17 See infra notes 31–87 and accompanying text.
18 See infra notes 31–87 and accompanying text.
19 See infra notes 88–213 and accompanying text.
20 See infra notes 88–213 and accompanying text.
21 See infra notes 214–317 and accompanying text.
22 17 U.S.C. � 102(a) (2000).
23 Id. This Note assumes that a legal complaint satisfies the requirement of being “fixed in any tangible medium of expression” because it “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” See id.; H.R. Rep. No. 94-1476, at 51–52 (1976), reprinted in 1976 U.S.C.C.A.N. 5664–65. Civil procedure rules also require parties to file their complaints, pleadings, and papers formally with the clerk of court. See, e.g., Fed. R. Civ. P. 5(e); Mass. R. Civ. P. 5(d)–(g); Tex. R. Civ. P. 74.
24 See 17 U.S.C. �� 401–412. The Copyright Act sets out explicit “Notice of Copyright” requirements for visually perceptible copies, phonorecords of sound recordings, publications incorporating U.S. government works, and contributions to collective works. Id. �� 401–404. Sections 408 through 412 set out the requirements for copyright registration. Id. �� 408–412.
25 Id. � 302.
26 See, e.g., N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992); Sid & Marty Krofft Television Prod., Inc v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir. 1977); Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975). This Note, by assuming that Firm Y copies the entirety of Firm X’s complaint, focuses only on the copyrightability of legal complaints and reserves the analyses of copyright infringement and misappropriation for future discourse. See infra notes 31–317 and accompanying text.
27 See 17 U.S.C. � 106(2); Anderson v. Stallone, No. 87-0592, 1989 U.S. Dist. LEXIS 11109, at *23–24 (C.D. Cal. Apr. 25, 1989); Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. Copyright Soc’y 209, 210 (1983). A copyright owner has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
17 U.S.C. � 106.
28 See 17 U.S.C. � 106.
29 See infra notes 31–87 and accompanying text.
30 See infra notes 88–213 and accompanying text.
31 See 17 U.S.C. � 102(a).
32 See id; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 363–64 (1991); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70–71 (2d Cir. 1999).
33 See H.R. Rep. No. 94-1476, at 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5664.
34 See Feist, 499 U.S. at 345; Ryan Littrell, Toward a Stricter Originality Standard for Copyright Law, 43 B.C. L. Rev. 193, 193–94 (2001).
35 See Feist, 499 U.S. at 345; Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 60; Nihon Keizai, 166 F.3d at 70–71.
36 See infra notes 37–87 and accompanying text.
37 111 U.S. at 54–55, 60.
38 Id. at 55–56.
39 Id. at 56.
40 Id. at 58.
41 See id. at 57–58.
42 See 111 U.S. at 59–60.
43 Id. at 60.
44 Id. at 55, 60.
45 188 U.S. at 251–52.
46 Id. at 248.
47 Id.
48 Id.
49 Id.
50 See Bleistein, 188 U.S. at 248.
51 Id. at 249.
52 Id. at 251–52.
53 Id. at 250.
54 See id.
55 See Bleistein, 188 U.S. at 251, 252.
56 See id.
57 See Feist, 499 U.S. at 363–64; Nihon Keizai, 166 F.3d at 70.
58 499 U.S. at 363–64.
59 Id. at 342.
60 Id.
61 Id. at 343.
62 Id.
63 Feist, 499 U.S. at 343.
64 Id.
65 Id. at 343–44.
66 Id. at 344.
67 Id. at 344, 347; see 17 U.S.C. � 101 (2000).
68 Feist, 499 U.S. at 348.
69 Id. at 342.
70 Id. at 345.
71 Id. at 345, 363.
72 Id.
73 Feist, 499 U.S. at 348.
74 See id.
75 Id. at 362–63.
76 Id.; see also BellSouth Adver. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc., 999 F.2d 1436, 1444 (11th Cir. 1993) (holding that a yellow pages business directory arrangement was not sufficiently original to warrant copyright protection because the heading titles, such as “Attorneys” and “Banks,” were typical and obvious labels for the categories).
77 Feist, 499 U.S. at 349, 354; see U.S. Const. art. I, � 8, cl. 8.
78 Feist, 499 U.S. at 363–64.
79 See 166 F.3d at 70.
80 See id. at 69, 70.
81 Id. at 70–71.
82 Id.
83 Id. at 71.
84 Nihon Keizai, 166 F.3d at 70.
85 Id. (quoting Wainwright Sec. Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 95–96 (2d Cir. 1977)).
86 See id.
87 See id. The court offered two exceptions to its holding, which are inconsequential to this Note because the exceptions relate to copyright infringement and misappropriation when only portions of a work are copied—as opposed to Firm Y , which copies the entirety of Firm X’s complaint. See id. at 71. In the first exception, one of the defendants’ abstracts did not copy the plaintiff’s protectable expression, because the only similarity between it and the plaintiff’s corresponding report was the use of the same facts. Id. The defendant reported the facts in a different arrangement using different sentence structure and word choice. Id. Because the abstract only repeated uncopyrightable facts, as opposed to repeating the plaintiff’s protected expression, there was no copyright infringement regarding this particular abstract. Id.
The second exception resulted from the defendants’ copying of only one paragraph of the plaintiff’s six-paragraph article. Id. As opposed to the other infringing abstracts, which copied well over fifty percent of the plaintiff’s respective reports, this particular abstract only copied twenty percent of the plaintiff’s original report. Id. The court was careful not to establish a quantitative bright-line rule that twenty percent copying is never substantially similar for infringement purposes. Id.; see also Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 564–65 (1985) (holding that copying of an insubstantial portion of a book still qualified as copyright infringement when the defendant essentially copied the “heart of the book”). The court made it clear that infringement would depend on both a quantitative—how much was copied—and qualitative—what was copied—analysis. See Nihon Keizai, 166 F.3d at 71. Where, as in the case at hand, the copyrighted work contained both uncopyrightable facts and copyrightable expression, a higher quantity of copying was required to support an infringement claim. Id. In contrast, if the work were wholly original, a lower quantity of copying would justify a finding of infringement. Id.
88 See Harper & Row, 471 U.S. at 560, 569; Baker v. Selden, 101 U.S. 99, 104–05 (1879); Nihon Keizai, 166 F.3d at 72–73; Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1143 (2d Cir. 1987); Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983); Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678–79 (1st Cir. 1967); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
89 See Baker, 101 U.S. at 104–05; Nichols, 45 F.2d at 121.
90 See Baker, 101 U.S. at 104–05; Nichols, 45 F.2d at 121; infra notes 96–117 and accompanying text.
91 See Morrissey, 379 F.2d at 678–79; infra notes 118–130 and accompanying text.
92 See Brandir, 834 F.2d at 1147; Gay Toys, 703 F.2d at 973; infra notes 131–171 and accompanying text.
93 See Brandir, 834 F.2d at 1147; Gay Toys, 703 F.2d at 973; infra notes 131–171 and accompanying text.
94 See Harper & Row, 471 U.S. at 560–61; Nihon Keizai, 166 F.3d at 72; infra notes 172–213 and accompanying text.
95 See infra notes 96–213 and accompanying text.
96 17 U.S.C. � 102(b) (2000).
97 See id.; Baker, 101 U.S. at 104–05; Nichols, 45 F.2d at 121.
98 See Baker, 101 U.S. at 104–05; Nichols, 45 F.2d at 121.
99 See Baker, 101 U.S. at 104–05; Nichols, 45 F.2d at 121.
100 See Baker, 101 U.S. at 107. Although the U.S. Supreme Court did not explicitly use the term “idea-expression dichotomy” in Baker, it formally set forth the doctrine in its 1954 decision in Mazer v. Stein. See Mazer v. Stein, 347 U.S. 201, 217 (1954). In Mazer, the Court reiterated the importance of the idea-expression dichotomy by stating that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’” Id. at 219. Essentially, the Court in Mazer looked to preserve the balance between competition and protection to determine how best to encourage the individual efforts of artists. See id. Mazer involved table lamps made in the shapes of male and female dancing figures. Id. at 202. The Court held that the lamps were copyrightable subject matter despite the fact that the lamps’ bases—the male and female figures—were put to practical use. Id. at 217, 218. The Court noted that copyright protection is “given only to the expression of the idea—not the idea itself” and expressly acknowledged the idea-expression dichotomy from Baker. Id. at 217; see also CDN Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (holding that copyright protection for the plaintiff’s price guides served as an incentive to create such price guides and fostered competition for others to create their own price guides).
101 Baker, 101 U.S. at 99–100.
102 Id. at 100.
103 Id.
104 Id. at 101–02, 105.
105 Id. at 101, 104.
106 Baker, 101 U.S. at 100.
107 Id. at 102, 104–05.
108 Id. at 104.
109 Id. at 104, 107.
110 See id. at 107.
111 See 45 F.2d 119, 121 (2d Cir. 1930).
112 Id. at 120.
113 Id. at 122. As Judge Hand noted, “The only matter common to the two is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.” Id.
114 Id. at 121.
115 Id.
116 See Nichols, 45 F.2d at 121.
117 See id. at 122. Judge Hand stated that the plaintiff’s general idea of “conflicts between Irish and Jews, into which the marriage of their children enters” was no more copyrightable than the “outline of Romeo and Juliet.” Id.
118 See Morrissey, 379 F.2d at 678–79.
119 See id.
120 See id.
121 See id.
122 See id.
123 See infra notes 124–130 and accompany text.
124 Morrissey, 379 F.2d at 678–79. Plaintiff’s “Rule 1” stated,
1. Entrants should print name, address and social security number on a boxtop, or a plain paper. Entries must be accompanied by . . . boxtop or by plain paper on which the name . . . is copied from any source. Official rules are explained on . . . packages of leaflets obtained from dealer. If you do not have a social security number you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for price.
Use the correct social security number belonging to the person named on entry . . . wrong number will be disqualified.
Id. at 678. Defendant’s Rule 1 stated:
1. Entrants should print name, address and Social Security number on a Tide boxtop, or on [a] plain paper. Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name “Tide” is copied from any source. Official rules are available on Tide Sweepstakes packages, or on leaflets at Tide dealers, or you can send a stamped, self-addressed envelope to: Tide “Shopping Fling” Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.
If you do not have a Social Security number, you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for a prize.
Use the correct Social Security number, belonging to the person named on the entry—wrong numbers will be disqualified.
Id.
125 Id. at 676.
126 Id.
127 Id. at 678.
128 Id. at 678–79.
129 See Morrissey, 379 F.2d at 678–79.
130 See id.; BellSouth, 999 F.2d at 1442 (holding that because there were only a few ways to construct a useful business directory, the arrangement of the directory—the expression of the information—“merged” with the idea of a business directory and was uncopyrightable); cf. Kregos v. Associated Press, 3 F.3d 656, 660 (2d Cir. 1993) (holding that the plaintiff’s pitching forms, used to predict winners in upcoming baseball games by comparing pitchers’ statistics, did not evince a merger of idea and expression because there were numerous ways to express the idea of rating pitchers’ performances).
131 See 17 U.S.C. � 101 (2000); Brandir, 834 F.2d at 1143; Gay Toys, 703 F.2d at 973.
132 17 U.S.C. � 102(a)(5).
133 Id. � 101.
134 Id.
135 H.R. Rep. No. 94-1476, at 55 (1976), reprinted in 1976 U.S.C.C.A.N. 5668.
136 See Brandir, 834 F.2d at 1148–49; Gay Toys, 703 F.2d at 973.
137 See Brandir, 834 F.2d at 1145, 1147; Gay Toys, 703 F.2d at 973.
138 See Bleistein, 188 U.S. at 249; Baker, 101 U.S. at 105.
139 See supra notes 100–110 and accompany text.
140 See 101 U.S. at 104–05.
141 Id.
142 See id. at 107.
143 See supra note 100.
144 See H.R. Rep. No. 94-1476, at 54–55 (1976), reprinted in 1976 U.S.C.C.A.N. 5667–68.
145 See id.
146 See id.
147 See Brandir, 834 F.2d at 1147; Gay Toys, 703 F.2d at 973.
148 703 F.2d at 973–74.
149 Id. at 971.
150 Id.
151 Id.
152 Id. at 971–72.
153 Gay Toys, 703 F.2d at 974. The district court found that toy airplanes were useful because “children need toys for growing up.” Id. at 973. In addition, the district court held that toy airplanes have the utilitarian function of permitting a “child to dream and to let his or her imagination soar.” Id. (quoting Gay Toys, Inc. v. Buddy L Corp., 522 F. Supp. 622, 625 (E.D. Mich. 1981)).
154 Id. at 973.
155 Id.
156 Id.
157 Id.
158 Gay Toys, 703 F.2d at 974.
159 834 F.2d at 1147. The plaintiff’s chief owner, the original designer of the RIBBON Rack, testified that he had created several wire sculptures as part of his personal expression—one of a bicycle and another self-standing sculpture. Id. at 1146. He stated that he did not give any thought to the utilitarian aspect of the latter wire sculpture until he accidentally juxtaposed the wire bicycle with it. Id. Even so, he did not seriously consider pursuing the utilitarian application of his wire sculpture until his friend, a bicycle enthusiast, informed him that the sculpture would make an excellent bicycle rack. Id. Thereafter, he worked with his friend to perfect the design of the bicycle rack, and in September 1979, the Brandir RIBBON Rack was advertised and promoted for sale nationally. Id. This rack, ubiquitous today, essentially consists of an undulating, wave-shaped steel tubing for holding bicycles. See id. at 1147, 1149–50 app.
160 Id. at 1146.
161 Id. at 1147. Utilitarian articles, though uncopyrightable, could be protected under U.S. patent laws so long as the requirements for patentability are met. See 35 U.S.C. �� 101–103, 112 (2000). See generally Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 12–15 (1966).
162 Brandir, 834 F.2d at 1147.
163 Id.
164 Id. at 1147.
165 Id. at 1143–45.
166 Id. at 1144 (quoting Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 422 (2d Cir. 1985)).
167 Brandir, 834 F.2d at 1145; see Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn. L. Rev. 707, 741 (1983).
168 Brandir, 834 F.2d at 1145.
169 See id.
170 Id. at 1145, 1147; see Denicola, supra note 167, at 741 (stating that copyrightability “ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations”).
171 Brandir, 834 F.2d at 1147–48.
172 See 17 U.S.C. � 107 (2000); Harper & Row, 471 U.S. at 560–69; Nihon Keizai, 166 F.3d at 72–73.
173 See 17 U.S.C. � 107 (“[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”); Harper & Row, 471 U.S. at 560; Nihon Keizai, 166 F.3d at 72; 4 Nimmer & Nimmer, supra note 1, � 13.05.
174 See Harper & Row, 471 U.S. at 560–69; Nihon Keizai, 166 F.3d at 72–73; see also Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (describing the fair use doctrine as “the most troublesome in the whole law of copyright”).
175 See 17 U.S.C. � 107; Harper & Row, 471 U.S. at 560–61; Nihon Keizai, 166 F.3d at 72; 4 Nimmer & Nimmer, supra note 1, � 13.05[A].
176 See infra notes 284–317 and accompanying text.
177 471 U.S. at 569.
178 Id. at 542.
179 Id. at 542–43.
180 Id.
181 Id. at 542.
182 Harper & Row, 471 U.S. at 544.
183 See id. at 560–69.
184 Id. at 561–62.
185 Id. at 562.
186 Id. at 563–64.
187 See Harper & Row, 471 U.S. at 563–64.
188 Id. at 564–65.
189 Id. at 564.
190 Id. at 565.
191 Id. at 566–67.
192 Harper & Row, 471 U.S. at 567.
193 Id. at 568–69.
194 See id. at 569.
195 166 F.3d at 72–73.
196 Id. at 70–71; see supra notes 79–87 and accompanying text.
197 Nihon Keizai, 166 F.3d at 72.
198 Id. (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).
199 Id.
200 Id. (quoting Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., No. 98 Civ. 641 DLC, 1998 U.S. Dist. LEXIS 6806, at *39 (S.D.N.Y. Apr. 14, 1998)).
201 Id.
202 Nihon Keizai, 166 F.3d at 72–73.
203 Id. at 72 (quoting Campbell, 510 U.S. at 586).
204 Id.; see also Stewart v. Abend, 495 U.S. 207, 237 (1990) (holding that “fair use is more likely to be found in factual works than in fictional works”).
205 Nihon Keizai, 166 F.3d at 72.
206 Id. at 73.
207 Id.
208 See id.
209 Id. at 71, 73.
210 Nihon Keizai, 166 F.3d at 73.
211 Id.
212 Id.
213 See id.
214 See 17 U.S.C. � 102(a) (2000); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 362–64 (1991); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250–51 (1903); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59–60 (1884); Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 70–71 (2d Cir. 1999).
215 See Frank E. Cooper, Writing in Law Practice 185 (rev. ed. 1963).
216 Id.
217 See id. at 183–84.
218 See id. at 185.
219 See id.
220 See 17 U.S.C. � 102(a) (2000); Feist, 499 U.S. at 362–64; Bleistein, 188 U.S. at 250–51; Burrow-Giles, 111 U.S. at 59–60; Nihon Keizai, 166 F.3d at 70–71. To avoid confusion over the copying and misappropriation requirements in the Copyright Act, the hypothetical in this Note assumes that Firm Y copies Firm X’s complaint in its totality. See 17 U.S.C. � 501. This Note focuses primarily on whether a legal complaint is copyrightable—not on what constitutes copyright infringement. See infra notes 221–317 and accompanying text.
221 See 17 U.S.C. � 102(a); Feist, 499 U.S. at 362–64; Bleistein, 188 U.S. at 250–51; Burrow-Giles, 111 U.S. at 59–60; Nihon Keizai, 166 F.3d at 70–71.
222 See 17 U.S.C. � 102(a); Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 56–58; supra note 23 and accompanying text.
223 See Burrow-Giles, 111 U.S. at 56–57; supra notes 37–44 and accompanying text.
224 See Bleistein, 188 U.S. at 249; supra notes 45–56 and accompanying text.
225 See U.S. Const. art. I, � 8, cl. 8; supra notes 37–56.
226 See Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 58.
227 See 17 U.S.C. � 102(a); Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 58.
228 See 17 U.S.C. � 102(a); Feist, 499 U.S. at 362–64; Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 59–60; Nihon Keizai, 166 F.3d at 70–71.
229 See Feist, 499 U.S. at 362; Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 60; Nihon Keizai, 166 F.3d at 70–71.
230 See Burrow-Giles, 111 U.S. at 60.
231 See id.
232 See Bleistein, 188 U.S. at 251–52.
233 See id.
234 See id. at 250.
235 See Bleistein, 188 U.S. at 250–51; Burrow-Giles, 111 U.S. at 60.
236 See 499 U.S. at 363–64; supra notes 57–78 and accompanying text.
237 See 166 F.3d at 70–71; supra notes 79–87 and accompanying text.
238 See supra notes 57–87 and accompanying text.
239 See Feist, 499 U.S. at 348, 361–63; Nihon Keizai, 166 F.3d at 70; Conley, supra note 2.
240 See Feist, 499 U.S. at 348, 362–64.
241 See id. at 362–64.
242 See Nihon Keizai, 166 F.3d at 70–71; Conley, supra note 2.
243 See Nihon Keizai, 166 F.3d at 70–71; Conley, supra note 2.
244 See Nihon Keizai, 166 F.3d at 70–71.
245 See id.; Feist, 499 U.S. at 362–64.
246 See Nihon Keizai, 166 F.3d at 70–71.
247 See 17 U.S.C. � 102(b) (2000); Baker v. Selden, 101 U.S. 99, 102 (1879); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
248 See Baker, 101 U.S. at 107; supra notes 100–110 and accompanying text.
249 See supra notes 100–110 and accompanying text.
250 See Cooper, supra note 215, at 185.
251 See supra notes 214–220 and accompanying text.
252 See Nichols, 45 F.2d at 121–22; supra notes 111–117 and accompanying text.
253 See supra notes 111–117 and accompanying text.
254 See Feist, 499 U.S. at 362–64; Bleistein, 188 U.S. at 250; Burrow-Giles, 111 U.S. at 60; Baker, 101 U.S. at 105; Nihon Keizai, 166 F.3d at 70–71.
255 See Baker, 101 U.S. at 105.
256 See id.; Nichols, 45 F.2d at 121.
257 See Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678–79 (1st Cir. 1967).
258 See id. at 678; supra notes 124–130 and accompanying text.
259 See supra notes 124–130 and accompanying text.
260 See id. at 678–79.
261 See Cooper, supra note 215, at 185–86.
262 See id. at 185.
263 See id. at 185–86.
264 See id. at 185–86, 187–88.
265 See id. at 187.
266 See Cooper, supra note 215, at 188.
267 See Morrissey, 379 F.2d at 678–79; Cooper, supra note 215, at 187.
268 See Morrissey, 379 F.2d at 678–79.
269 See 17 U.S.C. � 101 (2000); Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1147–48 (2d Cir. 1987); Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970, 973 (6th Cir. 1983).
270 See Brandir, 834 F.2d at 1147–48; Gay Toys, 703 F.2d at 973.
271 See Gay Toys, 703 F.2d at 973; supra notes 148–158 and accompanying text.
272 See supra notes 148–158 and accompanying text.
273 Gay Toys, 703 F.2d at 974.
274 See Cooper, supra note 215, at 185–86.
275 See Brandir, 834 F.2d at 1147–48; Gay Toys, 703 F.2d at 973.
276 See Brandir, 834 F.2d at 1147–48; Gay Toys, 703 F.2d at 974.
277 See Brandir, 834 F.2d at 1147–48; supra notes 159–171 and accompanying text.
278 See supra notes 159–171 and accompanying text.
279 Brandir, 834 F.2d at 1147–48.
280 See Cooper, supra note 215, at 185–86.
281 See id. at 187; Conley, supra note 2.
282 See Brandir, 834 F.2d at 1147–48.
283 See Nihon Keizai, 166 F.3d at 70; Gay Toys, 703 F.2d at 973. Usefulness, in itself, does not invalidate copyright protection automatically. See Nihon Keizai, 166 F.3d at 70; Brandir 834 F.2d at 1147. One must determine whether there are artistic qualities about the work that are worthy of copyright protection, because disallowing copyright protection on a work merely because it is useful in a general sense would effectively invalidate copyrights on many articles that convey factual information—such as news reports, newspapers, and other non-fictional works. See Nihon Keizai, 166 F.3d at 70; Brandir 834 F.2d at 1147. Moreover, denying copyright protection to news reports and other non-fictional works would have the detrimental effect of reducing authors’ and artists’ incentives to create such works. See CDN Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (holding that extending copyright protection to a publisher of price guides furthered competition by allowing the publisher’s competitors to create their own price guides, and simultaneously, provided an incentive to the publisher to create such guides).
284 See 17 U.S.C. � 107 (2000); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560–69 (1985); Nihon Keizai, 166 F.3d at 72–73.
285 See Harper & Row, 471 U.S. at 561–69; supra notes 177–194 and accompanying text.
286 See Nihon Keizai, 166 F.3d at 72–73; supra notes 195–213 and accompanying text.
287 See supra notes 177–213 and accompanying text.
288 Harper & Row, 471 U.S. at 562–63.
289 See id.
290 See id.; Birch, supra note 2, at 257; Conley, supra note 2.
291 See Harper & Row, 471 U.S. at 562–63, 566–69; Birch, supra note 2, at 257; Conley, supra note 2.
292 See Harper & Row, 471 U.S. at 566–69; Nihon Keizai, 166 F.3d at 73; see also CDN, 197 F.3d at 1262 (holding that extending copyright protection to a publisher of price guides furthered competition by allowing the publisher’s competitors to create their own price guides, and simultaneously, provided an incentive to the publisher to create such a guide).
293 See Harper & Row, 471 U.S. at 566–69; Nihon Keizai, 166 F.3d at 73; Birch, supra note 2, at 257.
294 See 166 F.3d at 72.
295 Id. at 69.
296 Id. at 72.
297 See id.; Cooper, supra note 215, at 183–85.
298 See Harper & Row, 471 U.S. at 561–63; Nihon Keizai, 166 F.3d at 72.
299 See Harper & Row, 471 U.S. at 563–64; Nihon Keizai, 166 F.3d at 72–73.
300 See Harper & Row, 471 U.S. at 563–64; Nihon Keizai, 166 F.3d at 72–73.
301 See Harper & Row, 471 U.S. at 542, 569; Nihon Keizai, 166 F.3d at 69, 73.
302 See Harper & Row, 471 U.S. at 563–64; Nihon Keizai, 166 F.3d at 72–73.
303 See Harper & Row, 471 U.S. at 563–64; Nihon Keizai, 166 F.3d at 72–73.
304 See Harper & Row, 471 U.S. at 563–64; Nihon Keizai, 166 F.3d at 72–73.
305 See Harper & Row, 471 U.S. at 564–66; Nihon Keizai, 166 F.3d at 73. Copying less would require a more in-depth evaluation, like the inquiry in Harper & Row, of whether Firm Y copied “the heart” of the complaint. See 471 U.S. at 565. This issue, however, would stray from this Note’s focus on the copyrightability of complaints and would enter into the realm of copyright infringement and misappropriation issues. See supra note 26 and accompanying text.
306 See Harper & Row, 471 U.S. at 563–66; Nihon Keizai, 166 F.3d at 71, 73.
307 See Harper & Row, 471 U.S. at 566–69; Nihon Keizai, 166 F.3d at 73.
308 See Harper & Row, 471 U.S. at 542, 566–69; Birch, supra note 2, at 256–57; Conley, supra note 2.
309 See Harper & Row, 471 U.S. at 566–69; Birch, supra note 2, at 257; Conley, supra note 2.
310 Nihon Keizai, 166 F.3d at 73.
311 See id.; Birch, supra note 2, at 257; Conley, supra note 2.
312 See Nihon Keizai, 166 F.3d at 73; Birch, supra note 2, at 257; Conley, supra note 2.
313 See Nihon Keizai, 166 F.3d at 73; Birch, supra note 2, at 257; Conley, supra note 2.
314 See Nihon Keizai, 166 F.3d at 73; Birch, supra note 2, at 257; Conley, supra note 2.
315 See Nihon Keizai, 166 F.3d at 73; Birch, supra note 2, at 257; Conley, supra note 2.
316 See Harper & Row, 471 U.S. at 566–69; Nihon Keizai, 166 F.3d at 73.
317 See Harper & Row, 471 U.S. at 560–69; Nihon Keizai, 166 F.3d at 72–73. Perhaps it would be fair use for Firm Y to make a copy of Firm X’s complaint purely for its files so that it has documentation on the approaches that other plaintiffs are taking. See supra note 173 and accompanying text.