Originally published in Emory Law Journal, Fall, 1990

39 Emory L.J. 965

THE PUBLIC DOMAIN

Jessica Litmana

http://www.law.wayne.edu/litman/

Copyright 1990 by the Emory University School of Law; Jessica Litman

ARTICLES

Artists have been deluding themselves, for centuries, with the notion that they create. In fact they do
nothing of the sort.

Spider Robinson1

Our copyright law is based on the charming notion that authors create something from nothing, that works
owe their origin2 to the authors who produce them.3 Arguments for strengthening copyright protection,
whether predicated on a theory of moral deserts4 or expressed in terms of economic incentives,5 often
begin with the premise that copyright should adjust the balance between the creative individuals who bring
new works into being and the greedy public who would steal the fruits of their genius.6

a
Associate Professor of Law, Wayne State University. The author would like to thank Jonathan Weinberg, Martin
Adelman, Jane Ginsburg, Ralph Brown, Wendy Gordon, Fred Yen, and Harry Litman, as well as her former colleagues--too
numerous to list individually--at the University of Michigan Law School, for their extensive and valuable comments on earlier
drafts of this article.
1
S. ROBINSON, Melancholy Elephants, in MELANCHOLY ELEPHANTS 1, 16 (1985).
2
See 1 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT § 2.01[A], at 2-8.1 (1989).
3
See id. § 1.06[A].
4
See, e.g., Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and
Encouragement Theory, 41 STAN.L.REV. 1343, 1442-65 (1989); Ladd, The Harm of the Concept of Harm in Copyright, 30 J.
COPYRIGHT SOC'Y U.S.A. 421 (1983).
5
See, e.g., Comment, A Rose By Any Other Name: Computer Programs and the Idea-Expression Distinction, 34
EMORY L.J. 741 (1985) [hereinafter Comment, A Rose]; Comment, Copyright Protection for Citations to a Law Reporter:
West Publishing Co. v. Mead Data Central, Inc., 71 MINN.L.REV. 991 (1987) [[hereinafter Comment, Copyright Protection].
6
See, e.g., Burcart, No Title to Titles: An Analysis of the Lack of Copyright Protection for Literary Titles, 32
COPYRIGHT L.SYMP. (ASCAP) 75, 102 (1986); Hill, Copyright Protection for Historical Research: A Defense of the
Minority View, 31 COPYRIGHT L.SYMP. (ASCAP) 45, 60-61 (1984); Kernochan, Imperatives for Enforcing Authors' Rights,
11 COLUM.-VLA J.L. & ARTS 587 (1987).
 The process of authorship, however, is more equivocal than that romantic model admits. To say that every
new work is in some sense based on the works that preceded it7 is such a truism that it has long been a
cliche, invoked but not examined. But the very act of authorship in any medium is more akin to translation
and recombination than it is to creating Aphrodite from the foam of the sea. Composers recombine sounds
they have heard before;8 playwrights base their characters on bits and pieces drawn from real human beings
and other playwrights' characters;9 novelists draw their plots from lives and other plots within their
experience;10 software writers use the logic they find in other software;11 lawyers transform old arguments
to fit new facts; cinematographers, actors, choreographers, architects, and sculptors all engage in the
process of adapting, transforming, and recombining what is already "out there"' in some other form.12 This
is not parasitism: it is the essence of authorship. And, in the absence of a vigorous public domain, much of
it would be illegal.

Because copyright's paradigm of authorship credits the author with bringing something wholly new into
the world, it sometimes fails to account for the raw material that all authors use. This tendency can distort
our understanding of the interaction between copyright law and authorship. Specifically, it can lead us to
give short shrift to the public domain by failing to appreciate that the public domain is the law's primary
safeguard of the raw material that makes authorship possible.

Commentary on the public domain has tended to portray it either as the public's toll for conferring private

7
See, e.g., Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. COPYRIGHT SOC'Y U.S.A. 209,
218 (1983); Landes & Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 332 (1989); Lange,
Recognizing the Public Domain, 44 LAW & CONTEMP.PROBS., Autumn 1981, at 147, 171-73.
8
E.g., L. KLEIN & J. MITCHELL, The Beat of Black Wings, on CHALK MARK IN A RAINSTORM, side 2, track
2 (Geffen Records, 1988); see, e.g., Propper, American "Popular"' Music and the Copyright Law, 3 COPYRIGHT L.SYMP.
(ASCAP) 165, 180-83 (1940); Ressner, New Faces: Syd Straw, ROLLING STONE, Sept. 21, 1989, at 25, col. 2; Rockwell,
From Bits of Jack Benny, a Quasi Opera, N.Y. Times, Sept. 30, 1989, at 11, col. 1; Pareles, In Pop, Whose Song Is It, Anyway?,
N.Y. Times, Aug. 27, 1989, § 2 (Arts & Leisure), at 1, col. 1.
9
See, e.g., D. HWANG, M. BUTTERFLY 4 (1988); C. ZADAN, SONDHEIM & CO. 243-51 (2d ed. 1989).
10
See, e.g., Yellin, A Method That Works (For Me), THE WRITER, Oct. 1989, at 18, 19-20; Lew, Hemingway
Typescripts and Letters Are Found, N.Y. Times, Aug. 17, 1989, at C21, col. 1; James, The Ayatollah's Other Victim, N.Y.
Times, Feb. 28, 1989, at C17, col. 4 (interview with Marianne Wiggins).
11
See, e.g., Machrone, Roots: The Evolution of Innovation, PC MAG., May 26, 1987, at 166; Samuelson, Is
Copyright Law Steering the Right Course?, IEEE SOFTWARE, Sept. 1988, at 78; Fisher, Software Industry in Uproar Over
Recent Rush of Patents, N.Y. Times, May 12, 1989, at A1, col. 5.
12
See, e.g., S. LEE, SPIKE LEE'S GOTTA HAVE IT: INSIDE GUERRILLA FILMMAKING 76-100 (1987); U.S.
COPYRIGHT OFFICE, COPYRIGHT IN WORKS OF ARCHITECTURE 195-96 (1989); Marion, Three Men and a Pop Star,
TV GUIDE, Aug. 4- 10, 1990, at 14, 15; Russell, Conjured by Calder, N.Y. Times, Oct. 22, 1989, § 2 (Arts & Leisure), at 1, col.
1; Brown, A City Built for Rock 'n' Roll, N.Y. Times, Oct. 5, 1989, at C1, col. 4; Batman's Birth Came in 1939, Det. Free Press,
June 22, 1989, at 4B, col. 1; Anderson, Critic's Notebook: Dance and the Influence of Others, N.Y. Times, Apr. 18, 1989, at
C15, col. 4; Irwin, How a Classic Clown Keeps Inspiring Comedy, N.Y. Times, Apr. 9, 1989, § 2 (Arts & Leisure), at 1, col. 2.
property rights in works of authorship 13 or as the realm of material undeserving of property rights.14
[FN14] The current trend is to characterize material in the public domain as unprotectible or
uncopyrightable.15 This description has important implications, for it inspires the question "Why not?"
Proponents of strong copyright protection have challenged the rationales for refusing copyright protection
to authors' creations and have called for property rights to be given in material as yet unprotected by
copyright law.16

To characterize the public domain as a quid pro quo for copyright or as the sphere of insignificant
contributions, however, is to neglect its central importance in promoting the enterprise of authorship. The
public domain should be understood not as the realm of material that is undeserving of protection, but as
a device that permits the rest of the system to work by leaving the raw material of authorship available for
authors to use.

This article examines the public domain by looking at the gulf between what authors really do and the way
the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the
public domain's place within the copyright scheme. Copyright grants authors17 rights modeled on real
property in order to encourage authorship by providing authors with markets in which they can seek
compensation for their creations. Because parcels of authorship are intangible, however, the law faces
problems in determining the ownership and boundaries of its property grants. In particular, the concept of
''originality,"' by reference to which copyright law purports to define property rights, provides an insufficient
guide. The public domain--a commons that includes those aspects of copyrighted works which copyright
does not protect--makes it possible to tolerate the imprecision of these property grants.

Part II of this article traces the historical development of the public domain in copyright case law. Courts
have gradually come to deny copyright protection to ideas, methods, systems, plots, scenes a faire,18 and
(sometimes) facts, even when blatantly copied from plaintiffs' works. The courts have not sought profound
theoretical justifications for denying protection, and different classes of cases reveal different motivations.

13
See, e.g., Gorman, Fact or Fancy? The Implications for Copyright, 29 BULL. COPYRIGHT SOC'Y U.S.A. 560,
560-61 (1982); Krasilovsky, Observations on Public Domain, 14 BULL. COPYRIGHT SOC'Y U.S.A. 205, 210-18 (1967);
Patterson, Free Speech, Copyright, and Fair Use, 40 VAND.L.REV. 1, 7 (1987).

14
See, e.g., B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 45-46 (1967); 1 M. NIMMER & D.
NIMMER, supra note 2, §§ 2.01[B], 2.03; Denicola, Copyright in Collections of Facts: A Theory for the Protection of
Nonfiction Literary Works, 81 COLUM.L.REV. 516, 521-22 (1981); Goldstein, supra note 7, at 222.
15
See infra note 189 and accompanying text.
16
See, e.g., Fleischmann, The Impact of Digital Technology on Copyright Law, 70 J.PAT.OFF.SOC'Y 5 (1988);
Comment, A Rose, supra note 5, at 769-76.
17
Throughout this article, I use the terms "author"' and "authorship"' in their copyright sense, see 17 U.S.C. §§ 102(a),
201 (1988), rather than in the vernacular sense of a person who writes or the process of writing. Thus, I refer to the person
responsible for the creation of any copyrightable work as its author. See 17 U.S.C. § 201.
18
"Scenes a faire"' is a term used to describe stock scenes, cliches, and common expressive details. See infra notes
127-36 and accompanying text.
Courts have seemed to invoke the public domain, however, in cases where the breadth of plaintiffs'
asserted property rights appeared to threaten the enterprise of authorship by curtailing the ability of authors
to pursue their craft.

Part III explores familiar theoretical justifications for the public domain and finds them for the most part
unsatisfactory. Therefore, Part IV returns to the principle of copyright as property. This section argues that
originality is a legal fiction. It is inherently unascertainable, and it is not the battleground on which
infringement suits are in fact decided. Because authors necessarily reshape the prior works of others, a
vision of authorship as original creation from nothing--and of authors as casting up truly new creations from
their innermost being--is both flawed and misleading. If we took this vision seriously, we could not grant
authors copyrights without first dissecting their creative processes to pare elements adapted from the works
of others from the later authors' recasting of them. This dissection would be both impossible and
unwelcome. If we eschewed this vision but nonetheless adhered unswervingly to the concept of originality,
we would have to allow the author of almost any work to be enjoined by the owner of the copyright in
another.

Part V of this article suggests that the public domain provides the solution to this dilemma and examines
that solution from the perspectives of potential defendants, potential plaintiffs, and the system of copyright
law as a whole. The public domain contains elements of authorship that easily seep into our minds and our
language or that for other reasons can be claimed by many authors. A broad public domain protects
potential defendants from incurring liability through otherwise unavoidable copying. It protects would-be
plaintiffs by relieving them of the impossible and unwelcome obligation to prove the actual originality of all
elements of their works. It protects the copyright system by freeing it from the burden of deciding questions
of ownership that it has no capacity to answer.

The purpose of copyright law is to encourage authorship. When we embody that encouragement in
property rights for authors, we can lose sight of a crucial distinction: Nurturing authorship is not necessarily
the same thing as nurturing authors. When individual authors claim that they are entitled to incentives that
would impoverish the milieu in which other authors must also work, we must guard against protecting
authors at the expense of the enterprise of authorship.

I. COPYRIGHT AND PROPERTY

Copyright law is a legal scheme, prescribed in the Constitution19 and put in place by Congress,20 to
encourage the enterprise of authorship.21 In the 280 years since the enactment of the first copyright

19
See U.S. Const. art I, § 8, cl. 8.
20
See 17 U.S.C. §§ 101-810 (1988).
21
Commentators have described the purpose of copyright in various ways, such as providing an incentive for authors
to create by securing remuneration for their work, see Gordon, Fair Use as Market Failure: A Structural and Economic Analysis
of the Betamax Case and Its Predecessors, 82 COLUM.L.REV. 1600 (1982), encouraging the dissemination of knowledge and its
addition to the public domain, see Gorman, supra note 13, at 560; see also 1 M. NIMMER & D. NIMMER, supra note 2, §
1.03[A], at 1-32, and attracting private investment to the production of original expression, see Goldstein, supra note 7. The
statute, 22 the technicalities surrounding copyright have assumed diverse forms,23 but the essential
mechanism has remained constant: The system creates legal rights akin to property rights.24

According to a currently popular mode of analysis, property rights in intellectual works are necessary
because intellectual creations pose a public goods problem: The cost of creating the works is often high,
the cost of reproducing them is low, and once created, the works may be reproduced rapaciously without
depleting the original.25 In a world in which such reproduction is not restrained, an author will be unable
to recover the costs of creating a work and will therefore forgo the creative endeavor in favor of something
more remunerative.26 To provide the author with a market in which she can seek compensation for her
creation, we establish property rights in her work and allow her to sell or lease these rights to others. Thus,
the copyright system encourages authors to create and encourages distributors to purchase rights in authors'
creations so that the distributors may sell those creations to the rest of us.

The model for these property rights is real property. 27 We cast the author's rights in the mold of exclusive
rights of control.28 Invasion of these rights is actionable on a strict liability basis,29 akin to the traditional
formulation of trespass to land.30 We describe the exceptions to the exclusive control attending ownership
as privileges.31 Copyrights are fully alienable, subject to a copyright statute of frauds.32 They may be

common ground among opposing camps of commentators is that copyright seeks either directly or indirectly to encourage
authorship.
22
Great Britain enacted the world's first copyright law in 1710. Statute of Anne, 1710, 8 Anne 19. See generally A.
LATMAN, R. GORMAN & J. GINSBURG, COPYRIGHT FOR THE NINETIES 1-4 (1989); L. PATTERSON,
COPYRIGHT IN HISTORICAL PERSPECTIVE 143-79 (1968).
23
See generally A. LATMAN, R. GORMAN & J. GINSBURG, supra note 22, at 3-12, 30-40.
24
See, e.g., 1 M. NIMMER & D. NIMMER, supra note 2, § 1.03[A], at 1-32 to -33; Gordon, supra note 21, at 1604.
25
See, e.g., Fisher, Reconstructing the Fair Use Doctrine, 101 HARV.L.REV. 1661, 1700-05 (1988); Gordon, supra
note 21, at 1610-13; Landes & Posner, supra note 7, at 326.
26
See, e.g., Brennan, Harper & Row v. The Nation, Inc.: Copyrightability and Fair Use, 33 J. COPYRIGHT SOC'Y
U.S.A 368, 375-76 (1985- 86).
27
See, e.g., R. DE WOLF, AN OUTLINE OF COPYRIGHT LAW 58 (1925); W. STRONG, THE COPYRIGHT BOOK: A
PRACTICAL GUIDE 1 (2d ed. 1984).
28
See 17 U.S.C. § 106 (1988). The constitutional provision on which U.S. copyright statutes are based is article I,
section 8, clause 8, which speaks of exclusive rights:
"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."DD'
Professor L. Ray Patterson, however, has argued that the constitutional language, when interpreted within its historical context,
directs Congress to establish a regulatory structure rather than a system of property rights. See Patterson, supra note 13, at
13-36. Patterson views the modern tendency to equate copyright with property as a dangerous error in interpreting the copyright
clause.
29
See, e.g., Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35 (7th Cir.), cert. denied, 273 U.S. 738
(1926); Gordon, supra note 4, at 1390-91.
30
See, e.g., Gregory, Trespass to Negligence to Absolute Liability, 37 VA.L.REV. 359 (1951).
31
See, e.g., Gordon, supra note 4, at 1391-92. Thus, the fair use privilege codified in 17 U.S.C. § 107 (1988) shares a
kinship with the privilege of necessity.
32
See 17 U.S.C. § 204 (1988); see, e.g., Fantasy, Inc. v. Fogerty, 654 F.Supp. 1129 (N.D.Cal.1987).
inherited,33 bequeathed,34 mortgaged,35 and distributed equitably upon divorce.36

Treating intellectual property as if it were real property, of course, can be problematic. The aspects of
intellectual property that create the public goods problems that the property regime is intended to repair
also make it difficult to fit intellectual property within the real property rubric.37 One difficulty, discussed
at length in a recent article by Professor Wendy Gordon, is that intellectual property lacks the tangible
qualities associated with real property. 38 In the face of intellectual property's lack of "thingness,"' the law
must supply alternative concepts to take the place of physical boundaries.39

Consider, for example, the problem of determining ownership. To ascertain who owns a parcel of real
property, we look to possession and to the chain of record title. We can rely on the fact that the parcel is
unique in assessing possession and can resolve conflicts in the paper title chain with reference to
temporally-based priorities.40 A parcel of intellectual property, however, is neither tangible nor unique.
Possession and temporal priority are therefore less than helpful concepts. How then is the law to determine
who owns an intellectual property and what that property comprises? Different regimes of intellectual
property approach this problem in different ways.

The patent system recognizes property rights only when the claimant can prove the analogues of
uniqueness and temporal priority. The inventor must demonstrate that the invention is new41 and that the
inventor was the first to create it.42 If the claimant cannot meet this burden of proof, no patent will issue.
The inventor must also specify the scope of the rights that she claims in the invention and demonstrate that

33
17 U.S.C. § 201(d) (1988).
34
Id. See generally Nevins, The Magic Kingdom of Will-Bumping: Where Estates Law and Copyright Law Collide, 35
J. COPYRIGHT SOC'Y U.S.A. 77 (1988) (estates containing copyright interests cause problems in estate planning).
35
See 1 Copyright L.Rep. (CCH) ¶ 4100, at 2601 (Sept. 1989).
36
See In re Marriage of Worth, 195 Cal.App.3d 768, 241 Cal.Rptr. 135 (1st Dist.1987). See generally Nimmer,
Copyright Ownership by the Marital Community: Evaluating Worth, 36 UCLA L.REV. 383 (1988).

37
See Lange, supra note 7, at 150.
38
See Gordon, supra note 4, at 1378-79.
39
See id. at 1378-84. Gordon concludes that the copyright statute provides adequate substitute boundaries in its
requirement that a work be fixed in tangible form in order to receive copyright protection and in the limits it places on the subject
matter it protects and the rights it extends. See id. I am far less sanguine about the adequacy of the doctrines Gordon relies on as
substitute boundaries. See infra notes 223-54 and accompanying text. The substitute boundaries Gordon identifies are useful in
determining whether property rights are claimed in a particular work, but they are of little use in sorting out competing claims to
that work's contents.
40
See generally R. CUNNINGHAM, W. STOEBUCK & D. WHITMAN, THE LAW OF PROPERTY 711-834
(1984).
41
See, e.g., Graham v. John Deere Co., 383 U.S. 1 (1966); Eisenberg, Proprietary Rights and the Norms of Science in
Biotechnology Research, 97 YALE L.J. 177, 185-86 (1987); Hughes, The Philosophy of Intellectual Property, 77 GEO.L.J. 287,
306-07 (1988).
42
See Eisenberg, supra note 41, at 214-16. The patent statute contains an exception permitting an inventor to obtain a
patent on the invention notwithstanding its prior invention by someone else who suppressed or concealed it. See 35 U.S.C. §
102(g) (1988). Normally, however, only the first inventor of an invention will be entitled to a patent.
she is entitled to them.43

The trademark system takes a different approach. The trademark claimant proves ownership of a mark
by proving that she has actually used it in trade and that the public has come to recognize that mark as her
signature.44 The property rights she gains from such a showing are limited to the exclusive use of the mark
in circumstances in which the public is likely to perceive it as emanating from her.45 Thus, ownership of
a trademark gives rise to what is, in essence, a homonym. The trademark owner has the exclusive right to
use the mark in contexts in which it will be understood in its trademark sense, but has no exclusive rights
to the use of the word in other contexts. For example, Proctor & Gamble's exclusive rights in the trademark
Tide (R), in connection with laundry detergent, do not extend to the use of the word "tide"' referring to
oceans. Although the common meaning of the word "tide"' may well have influenced Proctor and Gamble's
choice of it for a detergent mark, Proctor & Gamble's use of Tide (R), in connection with laundry
detergents, has, in effect, created a homonym with a very different meaning.46

Thus, the patent system imposes a real property-like set of uniqueness and temporal priority requirements
to determine the ownership and set the boundaries of a patent grant. The trademark system relies on actual
use in trade as an analogue to possession to determine ownership, and it sets the boundaries of the
exclusive rights to correspond with the public's perception of the meaning of a mark.47

What is copyright's analogue to these doctrines? Surprisingly, the system demands no comparable analysis
or evaluation until actual litigation occurs, and there is remarkably little analysis even during litigation.48
Copyright vests automatically in your shopping lists, your vacation snapshots, your home movies, and your
telephone message slips.49 There is nothing that you need to prove in order to ensure that your copyright

43
See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989); Adelman & Francione, The Doctrine of
Equivalents in Patent Law: Questions that Pennwalt Did Not Answer, 137 U.PA.L.REV. 673, 704-05 (1989); Eisenberg, supra
note 41, at 207-16.

44
The owner of a mark makes this showing either to the Patent and Trademark Office upon registration or in court if
she claims rights in an unregistered mark. See, e.g., California Cedar Prods. Co. v. Pine Mountain Corp., 724 F.2d 827 (9th
Cir.1984); Blue Bell, Inc. v. Farah Mfg. Co., 508 F.2d 1260 (5th Cir.1975). Although the trademark statute, as amended in 1988,
permits the claimant of a trademark to file a registration application before actually using the mark in trade, see 15 U.S.C. §
1051(b) (1988), the claimant must demonstrate actual use before the registration will issue. See 15 U.S.C. § 1051(d).
45
See, e.g., Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240 (9th Cir.1984), cert. denied, 469 U.S. 1188 (1985).
46
The related state law doctrine of trade secrecy, see generally Eisenberg, supra note 41, at 190-95, uses a model akin
to personal property. The law requires the owner of a trade secret to maintain a degree of actual secrecy in the nature of
possession and to assert control over disclosure of the secret to others in the nature of a bailment relationship. Should an identical
secret arise from incidents independent of the relationship, as with reverse engineering, its use is not actionable, because the
owner of the trade secret owns the secret itself but not its content. See Samuelson, Information as Property: Do Ruckelshaus and
Carpenter Signal a Changing Direction in Intellectual Property Law?, 38 CATH.U.L.REV. 365 (1989).
47
For a discussion of the relevance of temporal priority in the trademark context, see cases cited supra note 44. See
also B. PATTISHALL & D. HILLIARD, TRADEMARKS 40-42, 246-61 (1987).
48
See Adelman & Francione, supra note 43, at 675-76 & n. 7, 705-06.
49
17 U.S.C. § 201 (1988); see Lange, supra note 7, at 157; see also Brown, Unification: A Cheerful Requiem for
Common Law Copyright, 24 UCLA L.REV. 1070, 1079-80 (1977). Before January 1, 1978, the law required compliance with
endures until fifty years after your death. To provide the illusion of boundaries confining your property
rights, we invoke a copyright postulate: You own only such aspects of your writings as you added, or only
what is original with you.50 Put another way, you own only those portions that you did not copy from
someone else.51

This concept of originality is a keystone of copyright law.52 A work is ineligible for copyright protection
except to the extent that it reflects original authorship.53 Authorship is a term used to describe the
requirement of a non-trivial amount of creative expression;54 originality requires that the expression "owe
its origin"' to the author 55 rather than be copied from another source.56 Where a work of authorship is
based on preexisting sources, copyright will protect only the portions of it that are original.57 Thus,
originality determines the boundaries of the copyright. Its mirror image defines the scope of copyright
infringement since the statute protects the author only from another's copying, or use, of the original portion
of her work and does not prohibit the independent (and thus original) creation of other similar works.58

The principle of limiting copyright protection to only those aspects of a work that are original with its
author, while remarkably easy to state, proves to be impossible to apply. 59 We lack the capacity to
ascertain the sources of individuals' inspirations. Thus, the boundaries of copyright are inevitably
indeterminate. To mitigate the mischief this could cause, we rely on the public domain.

statutory formalities as a condition of federal copyright protection. See generally A. LATMAN, THE COPYRIGHT LAW
110-141 (5th ed. 1979).
50
See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903); 1 P. GOLDSTEIN, COPYRIGHT §
2.2.1, at 62 (1989).
51
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 2.2.1, at 62-67; 1 M. NIMMER & D. NIMMER, supra note 2, §
2.01[A]; W. PATRY, LATMAN'S THE COPYRIGHT LAW 22-23 (6th ed. 1986); Raskind, The Continuing Process of
Refining and Adapting Copyright Principles, 31 GERMAN Y.B. INT'L L. 478, 485 (1988).

52
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 1.2.2.3; Yankwich, Originality in the Law of Intellectual Property, 11
F.R.D. 457 (1951).
53
17 U.S.C. § 102(a) (1988); see, e.g., John Mueller & Co. v. New York Arrows Soccer Team, 802 F.2d 989 (8th
Cir.1986).
54
See Atari Games Corp. v. Oman, 693 F.Supp. 1204 (D.D.C.1988), rev'd on other grounds, 888 F.2d 878
(D.C.Cir.1989); accord, e.g., John Mueller & Co. v. New York Arrows Soccer Team, 802 F.2d 989 (8th Cir.1986).
55
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
56
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 1.2.2.3, at 14-15.
57
17 U.S.C. § 103(b) (1988). Indeed, the common wisdom reflected in the statute, its legislative history, and dictum in
the cases is that any portion of such a work that infringes the copyrights in preexisting works may not be copyrighted, even if it
incorporates distinguishable variations or improvements. 17 U.S.C. § 103(a); H.R.REP. NO. 1476, 94th Cong., 2d Sess. 57-58
(1976); see, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940). But see infra
notes 233-40 and accompanying text.
58
See, e.g., Landes & Posner, supra note 7, at 344-45.
59
See infra notes 223-56 and accompanying text.
 The concept of the public domain is another import from the realm of real property.60 Intellectual property
context, the term describes a true commons61 comprising elements of intellectual property that are ineligible
for private ownership.62 The contents of the public domain may be mined by any member of the public.63

The lay understanding of the public domain in the copyright context is that it contains works free from
copyright.64 Works created before the enactment of copyright statutes, such as Shakepeare's Macbeth
or Pachabel's Canon, are available for fourth grade classes across the nation to use for school assemblies
without permission from any publisher or payment of any royalties. Another class of old works in the public
domain are works once subject to copyright, but created so long ago that the copyright has since expired,
such as Mark Twain's Huckleberry Finn.65 An even larger class of uncopyrighted works in this country
entered the public domain because they were ineligible for U.S. copyright or failed to comply with a formal
prerequisite for securing it. The United States' first copyright statute expressly thrust all published works
by foreign nationals into the public domain. 66 That policy continued for the next century, until it was
grudgingly replaced with an extension of copyright to foreign works conditioned upon compliance with
United States procedures.67 Both domestic and foreign works fell into the public domain through
inadequate compliance with statutory formalities.68 Although this second class of works became less
significant when Congress eliminated most formal prerequisites and international distinctions in 1988,69 it

60
The term public domain gained widespread use in the late nineteenth century when the Berne Convention adopted
the term domaine public from the French. In the U.S., we had already been using the phrase "public domain"' (apparently derived
from the British Royal demesne) to describe lands owned by the federal government intended for sale, lease, or grant to members
of the public.
61
See Hughes, supra note 41, at 315-25. See generally Butler, The Commons Concept: An Historical Concept with
Modern Relevance, 23 WM. & MARY L.REV. 835 (1982); Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968);
Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U.CHI.L.REV. 711 (1986).
62
See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989). The concept of a vigorous public domain
is well recognized as central to the patent law scheme, and the Supreme Court has repeatedly insisted that material that the
patent system leaves in the public domain belongs to the public and may not be withdrawn. See id. The role of the public domain
in the copyright system is less widely acknowledged. See infra notes 189-222 and accompanying text.

63
The public domain in land, in contrast, is no longer a commons. The public domain is, rather, such unreserved land
as the federal government holds in fee on the public's behalf. The government administers this land as if it were private property,
and no member of the public is entitled to enter the public domain without the federal government's permission. See generally G.
COGGINS & C. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCES LAW xix-xxxi, 1-17 (1981).
64
See, e.g., WEBSTER'S THIRD INTERNATIONAL DICTIONARY 1836 (1986).
65
Samuel Clemens registered the copyright in Huckleberry Finn in 1884 under the 1831 copyright statute for a term of
28 years. Clemens died in 1910, and in 1912, his daughter Clara Gabrilowitsch renewed the copyright in Huckleberry Finn for an
additional 28 years. The novel entered the public domain in 1940.
66
See Act of May 31, 1790, ch. 15, 1 Stat. 124.
67
See Act of March 3, 1891, ch. 565, 26 Stat. 1106.
68
See supra note 49. J.R.R. Tolkein's Lord of the Rings trilogy was but one of many casualties. See J. TOLKEIN,
THE FELLOWSHIP OF THE RING xii-xiii (1965) (author's foreword to authorized paperback edition).
69
The Berne Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853 (1988), removed most of the statutory
formalities, including the requirement of copyright notice for works of domestic origin, and eliminated even the registration
requirement for works originating in foreign signatories to the Berne Convention. See generally Ginsburg & Kernochan, One
represents a massive body of public domain works.

But the class of works not subject to copyright is, in some senses, the least significant portion of the public
domain. The most important part of the public domain is a part we usually speak of only obliquely: the realm
comprising aspects of copyrighted works that copyright does not protect. Judge Learned Hand discussed
this facet of the public domain in connection with an infringement suit involving a play entitled Abie's Irish
Rose:
We assume that the plaintiff's play is altogether original, even to an extent that in fact it is hard to believe.
We assume further that, so far as it has been anticipated by earlier plays of which she knew nothing, that
fact is immaterial. Still, as we have already said, her copyright did not cover everything that might be drawn
from her play; its content went to some extent into the public domain.70

The concept that portions of works protected by copyright are owned by no one and are available for any
member of the public to use is such a fundamental one that it receives attention only when something seems
to have gone awry.71 Although the public domain is implicit in all commentary on intellectual property, it
rarely takes center stage. Most of the writing on the public domain focuses on other issues: Should the
duration of copyright be extended?72 Should we recognize new species of intellectual property rights?73
Should federal intellectual property law cut a broad preemptive swathe or a narrow one?74 Copyright
commentary emphasizes that which is protected more than it discusses that which is not. But a vigorous
public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible
to tolerate copyright at all.

II. HISTORICAL BACKGROUND

Ever since the first U.S. patent statute, the patent system appears to have incorporated a strong vision of
the divide between patentable inventions and technology in the public domain.75 The copyright system, in

Hundred and Two Years Later: The U.S. Joins the Berne Convention, 13 COLUM.-VLA J.L. & ARTS 1 (1988).
70
Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir.), cert. denied, 282 U.S. 902 (1930).
71
See, e.g., Francione, Facing The Nation: The Standards for Copyright, Infringement, and Fair Use of Factual Works,
134 U.PA.L.REV. 519 (1986); Karjala, Copyright, Computer Software, and the New Protectionism, 28 JURIMETRICS J., Fall
1987, at 33; Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory
Compilations, 36 UCLA L.REV. 719 (1989); Reichman, Computer Programs as Applied Scientific Know- How: Implications of
Copyright Protection for Commercialized University Research, 42 VAND.L.REV. 639, 696-97 (1989); Yen, A First Amendment
Perspective on the Idea/Expression Dichotomy and Copyright in a Work's "Total Concept and Feel"', 38 EMORY L.J. 393
(1989).
72
See, e.g., Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer
Programs, 84 HARV.L.REV. 281, 323-29 (1970); Cohen, Duration, 24 UCLA L.REV. 1180 (1977); Krasilovsky, supra note 13.
73
See, e.g., Brown, Eligibility for Copyright Protection: A Search for Principled Standards, 70 MINN.L.REV. 579
(1985); Lange, supra note 7.
74
See, e.g., Abrams, Copyright, Misappropriation, and Preemption: Constitutional and Statutory Limits of State Law
Protection, 1983 SUP.CT.REV. 509, 579; Brown, supra note 49; Goldstein, Preempted State Doctrines, Involuntary Transfers
and Compulsory Licenses: Testing the Limits of Copyright, 24 UCLA L.REV. 1107 (1977).
75
See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989); Graham v. John Deere Co., 383 U.S. 1
(1966).
contrast, has boasted no analogous overarching scheme. Instead, both the scope of copyrightable subject
matter and the outlines of the public domain developed gradually by accretion. The first U.S. copyright
statute made copyright available for "books"76 but did not spell out what portions of such books might be
subject to copyright protection. When copyright owners brought lawsuits asserting broad claims of
ownership, the courts took on the task of defining the nature of the rights in the copyright bundle. In so
doing, they drew the contours of the public domain bit by bit. This section of the article will trace this
historical development in order to begin to develop the reasons why a public domain is essential to the
enterprise of authorship and to establish a common ground for further analysis.

The idea that a statutory copyright carries with it a dedication to the public of aspects of or rights in the
copyrighted work emerged in the case law of the mid-nineteenth century as a matter of statutory
construction. Early copyright statutes granted limited rights in limited classes of works for a term of short
duration.77 Judicial opinions construing these statutes, and the English law on which they were based,
concluded that in order to give effect to the limited statutory term and the "Limited Times"' language of the
Copyright Clause,78 statutory copyright must extinguish common law literary rights (which authors and
publishers had argued existed as natural rights in perpetuity).79 The courts reasoned that since Congress
had expressed statutory copyright in terms of specific rights, any other literary rights, whether or not they
had once been protected at common law, must pass into the public domain upon the vesting of statutory
copyright.80 Publication was the dividing line: Once a work was published, statutory copyright became
available. If the author published her work but failed to avail herself of statutory procedures, the entire work
entered the public domain. If she complied with the copyright statute, she gained statutory rights, but any
other rights in her work became part of the public domain.

In the 1850s, Harriet Beecher Stowe published Uncle Tom's Cabin: or Life among the Lowly and secured
statutory copyright under the Copyright Act of 1831.81 This statute gave authors of books, maps, charts,
musical compositions, prints, cuts, or engravings the "sole right and liberty of printing, reprinting, publishing,
and vending"' their works.82 Stowe then commissioned a German translation of Uncle Tom's Cabin so that
she could market her book in Pennsylvania's German-speaking community and secured a copyright in the
translation. When a competing, unauthorized, German translation appeared in a Philadelphia

76
Act of May 31, 1790, ch. 15, 1 Stat. 124.
77
The first U.S. copyright statute, for example, granted authors of maps, charts, or books the rights to "print, reprint,
publish or vend"' for a 14 year term that could be renewed for a further 14 years. Act of May 31, 1790, ch. 15, 1 Stat. 124. See
generally L. PATTERSON, supra note 13, at 180-221; Patterson, supra note 13, at 33-48.
78
See supra note 28.
79
See Wheaton v. Peters, 33 U.S. 223, 8 Pet. 591 (1834); cf. Donaldsons v. Becket, 4 Burr. 2408, 98 Eng.Rep. 257
(H.L.1774). See generally L. PATTERSON, supra note 22, at 203-12; Abrams, The Historic Foundation of American Copyright
Law: Exploding the Myth of Common Law Copyright, 29 WAYNE L.REV. 1119 (1983).
80
See, e.g., Holmes v. Hurst, 174 U.S. 82 (1899); Stowe v. Thomas, 23 F.Cas. 201 (C.C.E.D.Pa.1853) (No. 13,514);
Story v. Holcombe, 23 F.Cas. 171 (C.C.D.Ohio 1847) (No. 13,497).
81
Act of Feb 3, 1831, ch. 16, 4 Stat. 436.
82
Id. at § 1. The rights subsisted for a term of 28 years, renewable for a further 14-year term. Id. at §§ 1, 2.
German-language newspaper, Stowe sued to enjoin its further publication. 83 The court held that an
unauthorized translation did not infringe on Stowe's statutory rights:
By the publication of Mrs. Stowe's book, the creations of the genius and imagination of the author have
become as much public property as those of Homer or Cervantes. Uncle Tom and Topsy are as much
publici juris as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and
abused by imitators, play-rights and poetasters. They are no longer her own-- those who have purchased
her book, may clothe them in English doggerel, in German or Chinese prose. Her absolute dominion and
property in the creations of her genius and imagination have been voluntarily relinquished. All that now
remains is the copyright of her book; the exclusive right to print, reprint and vend it, and those only can be
called infringers of her rights or pirates of her property, who are guilty of printing, publishing, importing or
vending without her license, "copies of her book."' A translation may, in loose phraseology, be called a
transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her
book.84

In 1870, Congress expanded copyright to permit authors to "reserve the right to dramatize or to translate
their own works."' 85 The analysis of the Stowe case, however, outlived its holding on the narrow issue of
whether translations infringed. Courts interpreted the scope of the copyright grant narrowly and continued
to hold that what Congress did not grant to the author became common property upon publication of the
work containing it.86

In 1879, the United States Supreme Court articulated this principle in more general terms in Baker v.
Selden. 87 The plaintiff in Baker v. Selden asserted copyright claims in a series of books about bookkeeping
and in the bookkeeping system that they described.88 Plaintiff Selden accused defendant Baker of copying

83
Stowe v. Thomas, 23 F.Cas. 201 (C.C.E.D.Pa.1853) (No. 13,514).
84
Id. at 208 (footnotes omitted).
85
Act of July 8, 1870, ch. 230, § 86, 16 Stat. 212. In the intervening years, Congress had added dramatic compositions
and photographs to the list of copyrightable works and established an exclusive right of public performance for dramatic
compositions. See Act of Aug. 18, 1856, ch. 169, 11 Stat. 138; Act of March 3, 1865, ch. 126, 13 Stat. 540. The 1870 statute
added paintings, drawings, prints, statues, and models to the list of protectible works. Composers of musical compositions did
not acquire an exclusive right of public performance until 1897. See Act of Jan. 6, 1897, ch. 4, 29 Stat. 481.
86
See, e.g., White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908); Holmes v. Hurst, 174 U.S. 82
(1899); Corcoran v. Montgomery Ward & Co., 121 F.2d 572 (9th Cir.1941); Kreymborg v. Durante, 21 U.S.P.Q. (BNA) 557
(S.D.N.Y.1934); Fitch v. Young, 230 F. 743 (S.D.N.Y.1911).
87
101 U.S. 99 (1879).
88
Charles Selden was a Cincinnati accountant who devised a bookkeeping method chiefly valuable for condensing
numerous columns of numbers onto only two forms. Selden wrote, published, and copyrighted five books describing his
bookkeeping system; each of the books contained copies of the ruled forms Selden had developed. With his copyrights secured,
Selden engaged a salesman to travel through Ohio and Indiana and attempt to sell the Selden bookkeeping system to midwestern
accountants. According to the testimony given at trial, the salesman gave his sales pitch at the Xenia, Ohio, office of one William
C. Baker, the auditor for Green County, and left one of Selden's books for Baker's perusal. Baker allegedly recommended that
Green County switch to the Selden system, but the county commissioners balked at paying Selden's price. The following year,
Baker apparently developed his own variant of the Selden system and designed his own variant of the Selden condensed ledger
forms. After successfully introducing his own forms to Green County, Baker achieved their adoption by county and state
government auditors throughout Ohio. Selden discovered Baker's activities but died before bringing suit. His widow sued Baker
the Selden bookkeeping system and pirating the bookkeeping forms published in Selden's books.89 The
Court held that the copyrights in the books neither conferred rights in the bookkeeping system itself, nor
protected the forms required to use the system. Both system and forms belonged to the public:
The very object of publishing a book on science or the useful arts is to communicate to the world the
useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used
without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without
employing the methods and diagrams used to illustrate the book, or such as are similar to them, such
methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the
public; not given for the purpose of publication in other works explanatory of the art, but for the purpose
of practical application.90

Baker v. Selden spawned several overlapping lines of authority on what aspects of a copyrighted work
a copyright will not protect. The most straightforward application of Baker v. Selden denies copyright to
blank forms.91 A second line of cases denies copyright protection to utilitarian articles.92 The third, most
fundamental line of authority prohibits copyright protection for ideas, theories, processes, or systems.93
The fourth outgrowth of Baker v. Selden is known as the merger doctrine.94 Where the unprotectible ideas
in a work are inseparable from the work's expression, copyright may not prohibit the use of expression
necessary to convey the ideas.95

In the twentieth century, Congress extended the scope of copyright enormously by granting more
expansive rights in an increasingly inclusive array of works.96 Most of what Baker v. Selden and later
cases assigned to the public domain has nonetheless remained unprotected. Some commentators have
attributed this to the innate conservatism of courts and have suggested that Baker v. Selden and its progeny

the following year. See Transcript of Records at 1-19, Baker v. Selden, 101 U.S. 99 (1879) (No. 99-184).
89
Baker's forms were not identical to Selden's, but they adopted the same essential strategy. See Transcript of
Records, supra note 88, at 16.
90
Baker, 101 U.S. at 103.
91
See, e.g., M.M. Business Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1139 (6th Cir.1973); Bibbero Sys. v. Colwell
Sys., Inc., 1988 Copyright L. Dec. (CCH) ¶ 26,270 (N.D.Cal.1988); Aldrich v. Remington Rand, Inc., 52 F.Supp. 732
(N.D.Tex.1942). But see Norton Printing Co. v. Augustana Hosp., 155 U.S.P.Q. (BNA) 133 (N.D.Ill.1967).
92
See, e.g., Amberg File & Index Co. v. Shea Smith & Co., 82 F. 314 (7th Cir.1987); Clair v. Philadelphia Storage
Battery Co., 43 F.Supp. 286 (E.D.Pa.1941); Serrana v. Jefferson, 33 F. 347 (C.C.S.D.N.Y.1888). But see Poe v. Missing
Persons, 745 F.2d 1238 (9th Cir.1984).
93
See, e.g., Affiliated Enters. v. Gruber, 86 F.2d 958 (1st Cir.1936); Stone & McCarrick, Inc. v. Dugan Piano Co., 210
F. 399 (E.D.La.1914); Eichel v. Marcin, 241 F. 404, 411 (S.D.N.Y.1913). But see Whelan Assocs. v. Jaslow Dental Laboratory,
Inc., 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S. 1031 (1987).
94
See, e.g., W. PATRY, supra note 51, at 32-34.
95
See, e.g., Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir.1971); Continental Casualty Co. v.
Beardsley, 253 F.2d 702 (2d Cir.), cert. denied, 358 U.S. 816 (1958); see also Morrisey v. Proctor & Gamble Co., 379 F.2d 675
(1st Cir.1967).
96
See Litman, Copyright Legislation and Technological Change, 68 OR.L.REV. 275 (1989).
be reinterpreted as obsolete constructions of superseded statutes.97 Others have insisted that Congress
relied on the limitations derived from Baker v. Selden in choosing to extend copyright's boundaries.98 In
either case,99 the doctrines that evolved from Baker v. Selden have ascended to the level of copyright
axioms.100

Like most legal axioms, the doctrines derived from Baker v. Selden have never been applied with
consistency. Courts have denied protection in one case, concluding that a defendant appropriated only the
plaintiff's ideas, and found infringement in a seemingly indistinguishable case.101 Courts have held one work
to be fatally utilitarian and then turned around and protected another that seems equally utilitarian.102 They
have refused to enjoin the copying of one blank form while imposing liability for the reproduction of another,
equally blank form.103 The case law does not supply many reliable indicia describing what aspects of a
copyrighted work are proprietary and what aspects are common property. Trends in lines of cases,
however, shed some light on the strains to which courts were responding when they consigned particular
sorts of material to the public domain.

In the wake of the Copyright Act of 1909,104 courts developed rules for particular classes of works and
determined infringement according to the class of the works in dispute. Three lines of cases, which I will
term the systems cases, the motion picture cases, and the directory cases, reveal three different approaches
to the public domain.

A. The Systems Cases

97
See 1 M. NIMMER & D. NIMMER, supra note 2, § 2.18[A]-[D]; Goldstein, supra note 7, at 228-32. Professor
Goldstein's more recent work appears to retreat from this view. See 1 P. GOLDSTEIN, supra note 50, at 77-78.
98
See Patterson & Joyce, supra note 71, at 767-69; Reichman, supra note 71, at 693 n. 288; Yankwich, What is Fair
Use?, 22U.CHI.L.REV. 203, 205-07 (1954).
99
Analysis of the legislative history accompanying the 1909 and 1976 copyright statutes indicates that the Register of
Copyrights and the private parties who negotiated among themselves to arrive at the language of the bills that Congress enacted
paid significant attention to these court-crafted limitations although the members of Congress themselves paid little attention to
such details. See Litman, supra note 96, at 334-37.
100
See, e.g., Brinson, Copyrighted Software: Separating the Protected Expression from Unprotected Ideas, A Starting
Point, 29 B.C.L.REV. 803, 811 (1988); Goldstein, supra note 7, at 228.
101
Compare, e.g., Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930), with
Sheldon v. Metro- Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940).

102
Compare, e.g., Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985) with, e.g.,
Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980). See generally Denicola, Applied Art and Industrial
Design: A Suggested Approach to Copyright in Useful Articles, 67 MINN.L.REV. 707, 736-37 (1983).
103
Compare, e.g., Januz Mktg. Communications, Inc. v. Doubleday & Co., 569 F.Supp. 76 (S.D.N.Y.1982), and
Carlisle v. Colusa County, 57 F. 979 (C.C.N.D.Cal.1893), with, e.g., Harcourt Brace & World, Inc. v. Graphic Controls Corp.,
329 F.Supp. 517 (S.D.N.Y.1971) and Brightley v. Littleton, 37 F. 103 (C.C.E.D.P.A.1888). See generally Gorman, supra note
13, at 580-82.
104
Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075-1088 (repealed 1978).
 The line of cases denying protection to systems followed a common pattern, seen earlier in Baker v.
Selden. In these cases, plaintiff had secured a copyright in a book, lecture, or chart explaining a system or
procedure and sought to parlay the copyright into a monopoly on the use of the system or procedure.105
Courts consistently held that publication of the work describing the system dedicated the system itself to
the public.106 In order to secure protection of a way of doing things, the courts explained, an author must
seek protection under the patent laws.107 In Aldrich v. Remington Rand, Inc.,108 for example, the author
of a manual on municipaltax assessment and collection sued the City of Fort Worth for adopting the system
described in his manual and the forms he had devised to illustrate the system. The court dismissed the
plaintiff's suit with the following observation:
The basic distinction between rights under patents and rights under copyrights must be constantly kept
in mind, one being that the public is not free to use the invention described in a patent, but it is privileged
to use whatever information is imparted in a copyrighted book about any system, art or manufacture
described in it; furthermore, that such use is the consideration the public receives for the grant of
copyright.109

The systems cases reflect the notion that the public domain exacts a toll as the price for a statutory
copyright and that courts will enforce the public's claim to common property even when the ideas or
systems reflected in works are ingenious.

B. The Film Cases

Early cases were protective of the proprietary interests that authors and producers claimed in dramatic
material.110 The growth of the motion picture industry, however, deluged the courts with claims of
infringement.111 In the typical case, plaintiff was the author of a book, play, or story that had enjoyed only

105
See, e.g., Dorsey v. Old Surety Life Ins. Co., 98 F.2d 872 (10th Cir.1939) (family group insurance policies); Selzer
v. Corem, 107 F.2d 75 (7th Cir.1939) (rules for roller derby races); Affiliated Enters. v. Gruber, 86 F.2d 958 (1st Cir.1936)
(promotional lotteries in motion picture theaters); Brief English Sys. v. Owen, 48 F.2d 555 (2d Cir.1931) (shorthand system
using Roman characters); Chautauqua School of Nursing v. National School of Nursing, 238 F. 151 (2d Cir.1916) (illustrated
twelve-step instruction in hypodermic injections); Aldrich v. Remington Rand, Inc., 52 F.Supp. 732 (N.D.Tex.1942) (tax
bookkeeping system); Crume v. Pacific Mut. Life Ins. Co., 55 U.S.P.Q. (BNA) 267 (N.D.Ill.1942) (reorganization of insurance
company), aff'd, 140 F.2d 182 (7th Cir.1944); Muller v. Triborough Bridge Auth., 43 F.Supp. 298 (S.D.N.Y.1942) (traffic
separation system for bridge on- ramps); Long v. Jordan, 29 F.Supp. 287 (N.D.Cal.1939) (pension system); Stone & McCarrick,
Inc. v. Dugan Piano Co., 210 F. 399 (E.D.La.1914) (piano promotion), aff'd, 220 F. 837 (5th Cir.1915).
106
See, e.g., Affiliated Enters. v. Gruber, 86 F.2d 958 (1st Cir.1936). But see Selzer v. Corem, 26 F.Supp. 892
(N.D.Ind.) (conducting roller derby would be unauthorized dramatization of plaintiff's book describing roller derby rules), rev'd,
107 F.2d 75 (7th Cir.1939).
107
See, e.g., Brief English Sys. v. Owen, 48 F.2d 555 (2d Cir.1931); Seltzer v. Sunbrock, 22 F.Supp. 621
(S.D.Cal.1938).
108
52 F.Supp. 732 (N.D.Tex.1942).
109
Id. at 734.
110
See, e.g., Chappell & Co. v. Fields, 210 F. 864 (2d Cir.1914); Daly v. Palmer, 6 F.Cas. 1132 (C.C.S.D.N.Y.1868)
(No. 3,552).
111
See Kalem Co. v. Harper Bros., 222 U.S. 55 (1911); Barry v. Hughes, 103 F.2d 427 (2d Cir.1939); Dellar v. Samuel
Goldwyn, Inc., 104 F.2d 661 (2d Cir.1939); Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850 (9th Cir.1938);
moderate success, and claimed that defendant's motion picture had been based on plaintiff's work.112
Many of the claims were plausible,113 and most were sincere.114 Courts, however, manifested increasing
reluctance to find infringement.

Some cases denied relief on the ground that the plot of the plaintiff's work was an old one and could be
found in other works already in the public domain.115 Courts, however, had difficulty articulating why the
mere fact that a work incorporated a standard plot should mean that its copying was not actionable. Neither
the language of the copyright statute nor the cases construing it seemed to impose a requirement that
copyright should protect only that which was new in some absolute sense. Both the statute116 and the case
law117 extended protection to modest recasting of old material. Motion picture defendants, nonetheless,
introduced sundry examples of prior similar works into the record, but were rarely successful in

London v. Biograph Co., 231 F. 696 (2d Cir.1916); Kustoff v. Chaplin, 32 F.Supp. 772 (S.D.Cal.1940), aff'd, 120 F.2d 551 (9th
Cir.1941); Lynch v. Warner Bros. Pictures, Inc., 32 F.Supp. 575 (S.D.N.Y.1940); Rapp v. Harold Lloyd Corp., 33 F.Supp. 47
(S.D.N.Y.1940); Sheets v. Twentieth Century-Fox Film Corp., 33 F.Supp. 389 (D.D.C.1940); Clancy v. Metro-Goldwyn
Pictures Corp., 37 U.S.P.Q. (BNA) 406 (S.D.N.Y.1938); Collins v. Metro-Goldwyn Pictures Corp., 25 F.Supp. 781
(S.D.N.Y.1938), rev'd, 106 F.2d 83 (2d Cir.1939); Bein v. Warner Bros. Pictures, Inc., 35 U.S.P.Q. (BNA) 78 (S.D.N.Y.1937),
aff'd, 105 F.2d 969 (2d Cir.1939); Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906 (S.D.N.Y.1937); Davies v. Columbia
Pictures Corp., 20 F.Supp. 809 (S.D.N.Y.1937); Shipman v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 249 (S.D.N.Y.1937), aff'd,
100 F.2d 533 (2d Cir.1938); Echevarria v. Warner Bros. Pictures, Inc., 12 F.Supp. 632 (S.D.Cal.1935); Ornstein v. Paramount
Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); Patten v. Superior Talking Pictures, Inc., 8 F.Supp. 196 (S.D.N.Y.1934); Sheldon v.
Metro-Goldwyn Pictures Corp., 7 F.Supp. 837 (S.D.N.Y.1934), rev'd, 81 F.2d 49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940);
Barbadillo v. Goldwyn, 42 F.2d 881 (S.D.Cal.1930); Witwer v. Harold Lloyd Corp., 46 F.2d 792 (S.D.Cal.1930), rev'd, 65 F.2d
1 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933); Nichols v. Universal Pictures Corp., 34 F.2d 145 (S.D.N.Y.1929), aff'd, 45
F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930); Curwood v. Affiliated Distrib., 283 F. 223 (S.D.N.Y.1922); Stodart v.
Mutual Film Co., 249 F. 507 (S.D.N.Y.1917), aff'd mem., 249 F. 513 (2d Cir.1918); Barsha v. Metro-Goldwyn-Mayer, 32
Cal.App.2d 556, 90 P.2d 371 (1939); O'Neill v. General Film Co., 171 A.D. 460, 157 N.Y.S. 599 (Sup.Ct.), modified, 171 A.D.
854, 157 N.Y.S. 1028 (1916); Tutelman v. Stokowski, 44 U.S.P.Q. (BNA) 47 (Pa.Ct.C.P.1939).
112
See, e.g., Witwer v. Harold Lloyd Corp., 46 F.2d 792 (S.D.Cal.1930), rev'd, 65 F.2d 1 (9th Cir.), cert. dismissed,
296 U.S. 669 (1933).
113
See, e.g., Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); Witwer v. Harold Lloyd Corp., 46
F.2d 792 (S.D.Cal.1930), rev'd, 65 F.2d 1 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933).
114
See, e.g., London v. Biograph Co., 231 F. 696 (2d Cir.1916); Nichols v. Universal Pictures Corp., 34 F.2d 145
(S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930).

115
E.g., London v. Biograph Co., 231 F. 696, 698 (2d Cir.1916) ("The plot is highly dramatic and calculated to appeal
powerfully to reader or spectator. But it is an old one; it appears in Chaucer's Pardoner's Tale."'); see also Harold Lloyd Corp. v.
Witwer, 65 F.2d 1, 23 (9th Cir.), rev'g on other grounds 46 F.2d 792 (S.D.Cal.1930), cert. dismissed, 296 U.S. 669 (1933);
Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); Nichols v. Universal Pictures Corp., 34 F.2d 145
(S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930).
116
Section 4 of the Copyright Act of 1909 extended copyright protection to "'all the writings of an author."'
Copyright Act, ch. 320, 35 Stat. 1075, 1076 (1909). Section 5 included in its enumeration of copyrightable works "'directories,
gazetteers and other compilations"' as well as "[r]eproductions of a work of art."' Id. at 1076-77.
117
See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903); Burrow Giles Lithographing Co. v. Sarony,
111 U.S. 53 (1884); Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35 (7th Cir.), cert. denied, 273 U.S. 738 (1926);
American Code Co. v. Rensinger, 282 F. 824 (2d Cir.1922).
demonstrating that plaintiffs had in fact relied upon them.118

Courts might have permitted copying in situations in which the defendant studio could demonstrate that
it had drawn its story from Chaucer rather than the plaintiff,119 but in many cases the evidence that the
motion picture producers had in fact relied on the plaintiff's work was compelling. 120 Furthermore, the
alleged similarities between the accusing story and the accused motion picture typically went beyond a
story's broad outlines and overall themes, encompassing similarities of setting, action, character, and detail
that could not easily be attributed to old classics.121

Although courts might have wished to seek refuge in a standard that excused unintentional duplication, the
principle that unintentional or subconscious copying gave rise to liability had been well settled for some
time.122 Moreover, in some cases the proof of conscious copying was persuasive. Courts, therefore, turned
to the rationale that had enabled them to rule for defendants in the systems cases: They claimed plots,
themes, titles, characters, ideas, and situations on behalf of the public domain.

In Nichols v. Universal Pictures Corp.,123 for example, the plaintiff claimed that the film The Cohens and
the Kelleys infringed her successful play Abie's Irish Rose. Both the play and the motion picture were
romantic comedies about a Jewish family and an Irish Catholic family whose children had secretly married.
Nichols presented evidence that Universal Pictures had tried to purchase the motion picture rights to Abie's
Irish Rose, that Universal screenwriters had studied the play in preparing the movie scenario, and that
Universal had advertised The Cohens and the Kelleys as an Abie's Irish Rose for the screen. 124 The trial
court agreed that Universal had relied on Nichol's play in making its film, but held that it had taken only that

118
See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp, 81 F.2d 49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940); Ornstein
v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); see also Haas v. Leo Feist, Inc., 234 F. 105 (S.D.N.Y.1916) (plaintiff's
song repeats chorus from HMS Pinafore, but there is no evidence that plaintiff ever heard HMS Pinafore).
119
See London v. Biograph Co., 231 F. 696, 698 (2d Cir.1916).
120
See, e.g., Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); Witwer v. Harold Lloyd Corp., 46
F.2d 792 (S.D.Cal.1930), rev'd, 65 F.2d 1 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933); Nichols v. Universal Pictures Corp.,
34 F.2d 145 (S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930). Other cases were decided on the
assumption that any similarities were the result of copying, thereby permitting the court to enter judgment on the pleadings and
avoid a full trial. See, e.g., Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906 (S.D.N.Y.1937); Shipman v. R.K.O. Radio
Pictures, Inc., 20 F.Supp. 249 (S.D.N.Y.1937), aff'd, 100 F.2d 533 (2d Cir.1938).
121
See, e.g., London v. Biograph Co., 231 F. 696 (2d Cir.1916); Echevarria v. Warner Bros. Pictures, Inc., 12 F.Supp.
632 (S.D.Cal.1935); Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935); Witwer v. Harold Lloyd Corp., 46 F.2d
792 (S.D.Cal.1930), rev'd, 65 F.2d 1 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933); Nichols v. Universal Pictures Corp., 34
F.2d 145 (S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930).
122
See, e.g., Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y.1924); Haas v. Leo Feist, Inc., 234 F. 105, 129
(S.D.N.Y.1916). But cf. Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 17 (9th Cir.) (although unintentional copying is actionable,
plaintiff's complaint alleges only deliberate copying), cert. dismissed, 296 U.S. 669 (1933).

123
34 F.2d 145 (S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930).
124
Id. at 150.
which anyone was entitled to use.125 On appeal, the Second Circuit expressly declined to base its
affirmance on the theory that the plaintiff had harvested her plot from older sources in the public domain
and could therefore not claim to own it. The court assumed that everything in the play owed its origin to
Nichols, but held that the play's broad outlines and the ideas it expressed nonetheless were part of the
public domain.126

Assimilating the broad outlines of a story's plot to the systems and ideas in the public domain, however,
did not suffice to dispose of many claims. Plaintiffs commonly drew the courts' attention to a variety of
similarities of a more detailed nature.127 The courts excused many of those similarities on the grounds that
they were trite,128 stock,129 common,130 or cliche.131 In the early 1940s, Judge Leon Yankwich, a literate
francophile sitting on the federal district court for the Southern District of California, gave these sorts of
details the name scenes a faire.132 Scenes a faire, Judge Yankwich explained, "are the common stock of
literary composition--'cliches'--to which no one can claim literary ownership."' 133

Analyzed within this framework, most motion picture claims evaporated.134 The defendant studio may
have availed itself of plaintiff's ideas, themes, and general plot and may have expressed those ideas, themes,
and plot through the same standard scenes and common details that plaintiff had used, but these aspects
of plaintiff's work were public property.

What accounts for the courts' reluctance to resolve these plagiarism claims in plaintiffs' favor? Some courts

125
Id. at 148-50.
126
Nichols, 45 F.2d at 122.
127
See, e.g., London v. Biograph Co., 231 F. 696 (2d Cir.1916); Echevarria v. Warner Bros. Pictures, Inc., 12 F.Supp.
632 (S.D.Cal.1935).
128
See, e.g., Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935).
129
See, e.g., Nichols, 34 F.2d 145.
130
See, e.g., London v. Biograph Co., 231 F. 696 (2d Cir.1916); Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp.
906 (S.D.N.Y.1937).
131
See, e.g., Gropper v. Warner Bros. Pictures, Inc., 38 F.Supp. 329 (S.D.N.Y.1941); accord Echevarria v. Warner
Bros. Pictures, Inc., 12 F.Supp. 632 (S.D.Cal.1935).
132
Cain v. Universal Pictures Co., 47 F.Supp. 1013, 1017 (S.D.Cal.1942):
The other small details, on which stress is laid, such as the playing of the piano, the prayer, the hunger motive, as it called, are
inherent in the situation itself. They are what the French call "scenes a faire"'. Once having placed two persons in a church during
a big storm, it was inevitable that incidents like these and others which are, necessarily, associated with such a situation should
force themselves upon the writer in developing the theme. Courts have held repeatedly that such similarities and incidental
details necessary to the environment or setting of an action are not the material of which copyrightable originality consists.
See also Bradbury v. Columbia Broadcasting Sys., 174 F.Supp. 733 (S.D.Cal.1959), rev'd, 287 F.2d 478 (9th Cir.), cert.
dismissed, 368 U.S. 801 (1961); Schwarz v. Universal Pictures Co., 85 F.Supp. 270 (S.D.Cal.1945). See generally Yankwich,
supra note 52.
133
Schwarz v. Universal Pictures Co., 85 F.Supp. 270, 278 (S.D.Cal.1945).
134
See, e.g., O'Rourke v. R.K.O. Radio Pictures, Inc., 44 F.Supp. 480 (D.Mass.1942); Gropper v. Warner Bros.
Pictures, Inc., 38 F.Supp. 329 (S.D.N.Y.1941). But see Sheldon v. Metro-Goldwyn Pictures Corp, 81 F.2d 49 (2d Cir.1936),
aff'd, 309 U.S. 390 (1940); Stonesifer v. Twentieth Century-Fox Film Co., 48 F.Supp. 196 (S.D.Cal.1942), aff'd, 140 F.2d 579
(9th Cir.1944).
were undoubtedly responding to their perceptions of economic realities. Even if Harold Lloyd had
appropriated the plot for his film The Freshman from H.C. Witwer's magazine story, the film's million-dollar
success owed more to Lloyd's performance than it did to Witwer's plot.135 Similarly, the success of the
film Stowaway had more to do with its star, Shirley Temple, than with the premise that Twentieth
Century-Fox allegedly plagiarized from Joan Storm's play Dancing Destiny.136 Beyond the courts'
sensitivity to the financial equities in particular cases, however, there also appears to be an awareness of
the limitations inherent in dramatic and film art forms. The motion pictures before the court and the stories
that were claimed to inspire them were typical. If one motion picture infringed because it told a familiar
story, other films not before the court were equally vulnerable.

C. The Directory Cases

In the systems and motion picture cases, the solicitude of the courts for the creative process led them to
assert public ownership of creative material. One might have expected such courts to be especially reluctant
to protect facts under the rubric of copyright. Surprisingly, however, courts gave copyright protection to
facts without seriously questioning the propriety of doing so.137

The uncopyrightability of facts themselves is well settled today,138 but was far from certain early in the
century. News was thought to be uncopyrightable,139 but that proposition remained untested for many
years because of the impracticality of daily registration.140 Neither courts nor commentators generalized
from the public domain status of news to any conclusion about whether other facts or information could be
protected.141 The question of the copyrightability of facts qua facts was not squarely raised before a U.S.
court until the 1919 decision in Myers v. Mail & Express Co.142 Judge Learned Hand's opinion in Myers

135
See Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 18 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933); id. at 46-47
(McCormick, J., dissenting).
136
See Dezendorf v. Twentieth Century-Fox Film Corp., 32 F.Supp. 359 (S.D.Cal.1940), aff'd, 118 F.2d 561 (9th
Cir.1941).
137
See generally Lurvey, "Verifying"' from Prior Directories--"Fair Use"' or Theft? Delicate Distinctions in the
Protection of Copyrighted Compilations, 13 BULL. COPYRIGHT SOC'Y U.S.A. 271, 282-89 (1967).
138
See, e.g., 1 M. NIMMER & D. NIMMER, supra note 2, § 2.11[A]; Denicola, supra note 14, at 524-26; Francione,
supra note 71, at 520-21, 551- 75; Shipley & Hay, Protecting Research: Copyright, Common-Law Alternatives, and Federal
Preemption, 63 N.C.L.REV. 125 (1984).
139
See International News Serv. v. Associated Press, 248 U.S. 215, 234 (1918); Chicago Record-Herald Co. v. Tribune
Ass'n, 275 F. 797, 798 (7th Cir.1921); Davies v. Bowes, 209 F. 53, 55-56 (S.D.N.Y.1913), aff'd on other grounds, 219 F. 178 (2d
Cir.1915); R. BOWKER, COPYRIGHT: ITS HISTORY AND ITS LAW 87-89 (1912).

140
See International News Serv. v. Associated Press, 248 U.S. at 233.
141
See, e.g., American Trotting Register Ass'n v. Gocher, 70 F. 237 (C.C.N.D.Ohio 1895); List Publishing Co. v.
Keller, 30 F. 772 (C.C.S.D.N.Y.1887); E. DRONE, A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL
PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES 394-99 (1879); see also T. SCRUTTON, THE LAW
OF COPYRIGHT 110-23 (4th ed. 1903) (British law).
142
36 C.O.Bull. 478 (S.D.N.Y.1919). One earlier decision, Kennerley v. Simonds, 247 F. 822 (S.D.N.Y.1917),
presented the same question but was decided on other grounds. Defendant Simonds had written a history book and assigned the
concluded that facts recorded in a historical work were dedicated to the public and could be used freely
by subsequent authors.143 None of the authority on which Hand relied, however, was squarely on point,
and the Myers decision remained unreported until 1970.144 Two years after Myers, in an opinion involving
competing directories of jewelers' trademarks, Judge Hand repeated his conclusion that facts themselves
are common property. 145 He suggested in dictum, however, that the author of a factual directory was not
entitled to copy its information from a competing directory. 146 On appeal, the Second Circuit went further,
resting its decision on the holding that the reproduction of information from a copyrighted directory was
itself infringement.147 The Ninth Circuit relied on the Second Circuit's analysis in ruling that the reproduction
of information from a copyrighted telephone directory was infringement.148 Other courts followed.149

The directory cases predicated protection of factual works on the labor involved in compiling facts.150
A subsequent compiler was not permitted to rely on a copyrighted directory, although she was free to
publish an identical collection of facts if she first obtained those facts through consultation of preexisting
sources.151 There was nothing innovative about these cases: A long line of British cases had protected
factual compilations against competing second-comers,152 and nineteenth-century American cases had
followed their British counterparts.153 What makes the directory cases noteworthy is their coexistence with
cases holding facts to be unprotectible in other contexts. During the same period that courts took a
protectionist view in directory cases, opinions considering historical fiction, drama, and film insisted that
facts belonged in the public domain.154 While courts in the motion picture cases dissected similarities
between works to determine whether the similarities involved copyrightable expression rather than

copyright to a publisher. Simonds subsequently wrote another history book on the same subject, and the publisher brought suit
for copyright infringement. The court held for Simonds on the ground that in writing the second book he had consulted the same
preexisting sources that he had used for his earlier book, rather than copying the book itself. See id. at 826.
143
Meyers, 36 C.O.Bull. at 478-79.
144
See 36 C.O.Bull. at iii.
145
Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 935 (S.D.N.Y.1921), aff'd, 281 F. 83 (2d
Cir.), cert. denied, 259 U.S. 581 (1922).
146
Jewelers', 274 F. at 935.
147
See Jewelers', 281 F. at 92-95.
148
See Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484, 486 (9th Cir.1937).
149
See, e.g., Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809 (7th Cir.1942); Sammons v.
Larkin, 38 F.Supp. 649 (D.Mass.1940).
150
See, e.g., Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83, 88 (2d Cir.), cert. denied, 259
U.S. 581 (1922); see also Denicola, supra note 14, at 529 & n. 64; Ginsburg, Creation and Commercial Value: Copyright
Protection of Works of Information, 90 COLUM.L.REV. ---- (forthcoming 1990).
151
See, e.g., Produce Reporter Co. v. Fruit Produce Rating Agency, 1 F.2d 58 (N.D.Ill.1924).
152
See cases cited in Lurvey, supra note 137, at 273-76.
153
See, e.g., American Trotting Register Ass'n v. Gocher, 70 F. 237 (C.C.N.D.Ohio 1895); List Publishing Co. v.
Keller, 30 F. 772 (C.C.S.D.N.Y.1887); cases cited in Lurvey, supra note 137, at 276-81.
154
See, e.g., Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906 (S.D.N.Y.1937); Echevarria v. Warner Bros.
Pictures, Inc., 12 F.Supp. 632 (S.D.Cal.1935); Maddux v. Grey, 43 F.2d 441 (S.D.Cal.1930). See generally Denicola, supra note
14, at 535-36.
unprotectible plot, theme, scene a faire, or fact,155 the same courts in directory cases engaged in no
comparable inquiry.156 If plaintiff could prove that defendant had used plaintiff's directory as the source
of its own, then plaintiff recovered for copyright infringement without regard to the copyrightability of the
copied material.157 Although these cases are still followed today,158 the modern view is that their reasoning
was aberrant.159

Courts and commentators have advanced a variety of theories to explain the paradox between protecting
information in compilations of facts and insisting that facts are public property in connection with other
works.160 I will offer my own modest suggestions for reconciling these cases in a subsequent section of
this article.161 For now, it is enough to note that the three lines of cases turned to the refuge of the public
domain in response to different sorts of pressure.

In the systems cases, authors sought to establish ownership of an entire way of doing things through the
simple expedient of writing a book about it. Although the patent statute offered a rigorous procedure for
claiming property rights in innovative solutions and proving the scope of one's entitlement, these authors
sought to cripple their competitors while avoiding the rigors of the patent system. Courts responded by
advancing the quid pro quo argument that the public exacts a toll in return for statutory copyright. In the
film cases, courts struggled with competing claims to exclusive ownership of themes and embellishments
common to myriad fictional works. They replied by holding the familiar elements incapable of private
appropriation. Finally, in the directory cases, authors claimed ownership in material they could not plausibly
assert that they had originated, but that they had nonetheless expended significant labor in collecting. Courts
granted protection to the labor involved.

The courts' strategy seems to have been a reactive one, and it yielded no blueprint of the public domain's
outer limits and no overall rationale for its existence. There is, however, a common thread in these three
lines of cases. Courts invoked the public domain when the breadth of plaintiffs' asserted property rights
threatened, as a practical matter, to prevent many other authors from pursuing their craft. Courts thus seem
to have recognized, at least implicitly, that copyright should promote the enterprise of authorship and that

155
See, e.g., Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906 (S.D.N.Y.1937); Echevarria v. Warner Bros.
Pictures, Inc., 12 F.Supp. 632 (S.D.Cal.1935).
156
See, e.g., Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484 (9th Cir.1937); Produce Reporter Co. v. Fruit Produce Rating
Agency, 1 F.2d 58 (N.D.Ill.1924).
157
See, e.g., Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484 (9th Cir.1937).
158
See, e.g., United Tel. Co. v. Johnson Publishing Co., 855 F.2d 604 (8th Cir.1988); National Business Lists, Inc. v.
Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982); Northwestern Bell Tel. Co. v. Bedco of Minn., Inc., 501 F.Supp. 299
(D.Minn.1980).
159
See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369-70 (5th Cir.1981); 1 M. NIMMER & D.
NIMMER, supra note 2, § 3.04; W. PATRY, supra note 51, at 63-64; Gorman, supra note 13, at 573-76.
160
See National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982); Denicola, supra note
14, at 527-35; Ginsburg, supra note 150; Gorman, supra note 13; Lurvey, supra note 137, at 286-300; Raskind, supra note 51, at
484-99.
161
See infra notes 285-89 and accompanying text.
this goal may at times be inconsistent with protecting or rewarding individual authors.

D. Statutory Codification

By the late 1950s, when Congress began the revision process that culminated in the 1976 Copyright
Act,162 the outlines of the public domain in copyrighted works were reasonably clear. Some of the rules
defining the public domain were incorporated into the 1976 statute;163 other aspects were expressed in
Copyright Office regulations.164 Still more aspects appeared only in the case law165

Copyright did not protect ideas, methods, systems,166 facts,167 utilitarian objects,168 titles,169 themes,170
plots,171 scenes a faire,172 words, short phrases and idioms,173 literary characters,174 style,175 or works of
the federal government.176 This hodgepodge of unprotectible matter was without overarching justification
then, and it remains so today.

In the years since the enactment of the 1976 Copyright Act, litigation has put increasing pressure on the

162
Pub.L. No. 94-533, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101-810 (1988)).
163
See 17 U.S.C. § 102(b) (1988) (ideas, systems); 17 U.S.C. §§ 101, 113 (useful articles); 17 U.S.C. § 105 (works of
the federal government).
164
See, e.g., 37 C.F.R. § 202.1(a) (1989) (words and short phrases); 37 C.F.R. § 202.1(c) (blank forms).
165
See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir.) (scenes a faire), cert. denied, 429 U.S.
980 (1976).
166
See, e.g., Gayle v. Gillis, 167 F.Supp. 416 (D.Mass.1958).
167
See, e.g., Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688 (2d Cir.1938); Greenbie v. Noble, 151
F.Supp. 45 (S.D.N.Y.1957); Lake v. Columbia Broadcasting Sys., 140 F.Supp. 707 (S.D.Cal.1956).
168
See, e.g., Fulmer v. United States, 103 F.Supp. 1021 (Ct.Cl.1952).
169
See, e.g., Weissman v. Radio Corp. of America, 80 F.Supp. 612 (S.D.N.Y.1948); Lone Ranger, Inc. v. Cox, 39
F.Supp. 487 (W.D.S.C.1941), rev'd on other grounds, 124 F.2d 650 (4th Cir.1942); Affiliated Enters. v. Rock-Ola Mfrs. Corp.,
23 F.Supp. 3 (N.D.Ill.1937); Brondfield v. Paramount Pictures Corp., 200 N.Y.Misc. 883, 107 N.Y.S.2d 698 (N.Y.Sup.Ct.1951).
170
See, e.g., Shipman v. R.K.O. Radio Pictures, Inc., 100 F.2d 533 (2d Cir.1938); Warshawsky v. Carter, 132 F.Supp.
758 (D.D.C.1955); Roe- Lawton v. Hal E. Roach Studios, 18 F.2d 126 (S.D.Cal.1927); Ware v. Columbia Broadcasting Sys., 155
U.S.P.Q. (BNA) 413 (Cal.App.1967).
171
See, e.g., Scott v. WKJG, Inc., 376 F.2d 467 (7th Cir.), cert. denied, 389 U.S. 832 (1967).
172
See Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir.), cert. denied, 429 U.S. 980 (1976); Schwarz
v. Universal Pictures Co., 85 F.Supp. 270 (S.D.Cal.1945). See, e.g., Morris v. Wilson, 189 F.Supp. 565 (S.D.N.Y.1960), aff'd,
295 F.2d 36 (2d Cir.1961), cert. denied, 368 U.S. 1004 (1962).
173
See Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir.), cert. denied, 429 U.S. 980 (1976); Schwarz
v. Universal Pictures Co., 85 F.Supp. 270 (S.D.Cal.1945).
174
See, e.g., Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir.1954), cert. denied, 348 U.S.
971 (1955); Lone Ranger, Inc. v. Cox, 39 F.Supp. 487 (W.D.S.C.1941), rev'd on other grounds, 124 F.2d 650 (4th Cir.1942);
Burtis v. Universal Pictures Co., 40 Cal.2d 823, 256 P.2d 933 (1953).
175
See, e.g., Franklin Mint Corp. v. National Wildlife Art Exch., 575 F.2d 62 (3d Cir.), cert. denied, 439 U.S. 880
(1978).
176
See, e.g., Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir.1969), cert. denied, 397 U.S. 936 (1970); B.
RINGER & P. GITLIN, COPYRIGHTS 19 (1965).
public domain. The 1976 Act's expansion of subject matter eligible for copyright protection has multiplied
copyright cases and nurtured new claims to exclusive rights in the basic building blocks of a variety of
different forms of expression.177 The statute's protection of television broadcasts, for example, has led to
litigation over how much of what we see on television can be claimed as property. 178 The extension of
federal copyright protection to unpublished works has created disputes over what aspects of the content
of unpublished works are proscribed to the researcher.179 Copyright protection of computer software has
generated lawsuits claiming that copyright provides exclusive rights to the "'look and feel"' of programs180
or to the user interfaces they employ.181

Some courts have responded to the flood of litigation and to the breadth of asserted claims by expanding
the boundaries of categories of public domain material. The Second and Ninth Circuits have extended the
doctrine that facts are common property to encompass analysis of facts, theories about facts, and ordinary
ways in which facts may be described.182 Courts have revived the scenes a faire doctrine, invented in the
context of motion picture infringement cases,183 and applied it to a variety of new contexts.184 Other
courts, in contrast, have questioned the policies underlying the law's failure to recognize property rights in
valuable categories of public domain material185 or have interpreted the scope of such categories

177
See, e.g., Raskind, supra note 51, at 479-80.
178
See, e.g., National Assoc. of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 378-80 (D.C.Cir.1982)
(football games); id. at 377 (order of programs in broadcast day); Novak v. NBC, 716 F.Supp. 745 (S.D.N.Y.1989) (comedy
sketches about Tarzan and Frankenstein); Barris/Fraser Enters. v. Goodson-Todman Enters., 5 U.S.P.Q.2d (BNA) 1887
(S.D.N.Y.1988) (format of TV game show); Chuck Blore & Don Richman, Inc. v. 20/20 Advertising Inc., 674 F.Supp. 671
(D.Minn.1987) (style of commercial and use of particular actress).
179
See, e.g., New Era Publications Int'l v. Henry Holt & Co., 884 F.2d 659, 660-61 (2d Cir.1989) (Miner, J.,
concurring in denial of rehearing en banc); id. at 662-63 (Newman, J., dissenting); Lucas, A Ruling that Hobbles Historians, N.Y.
Times, July 27, 1990, at A11, col. 2.
180
See, e.g., Apple Computer, Inc. v. Microsoft Corp., 717 F.Supp. 1428 (N.D.Cal.1989); Samuelson & Glushko,
Comparing the Views of Lawyers and User Interface Designers on the Software Copyright "Look and Feel"' Lawsuits, 30
JURIMETRICS J., Fall 1989, at 121; Taking the Stand: The Look-and-Feel Issue Examined, PC MAG., May 26, 1987, at 155.
181
See Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 STAN.L.REV. 1045,
1079-83 (1989); see also, e.g., Telemarketing Resources v. Symantec Corp., 12 U.S.P.Q.2d (BNA) 1991 (N.D.Cal.1989).
182
See Narell v. Freeman, 10 U.S.P.Q.2d (BNA) 1596 (9th Cir.1989); Landsberg v. Scrabble Crossword Game
Players, Inc., 736 F.2d 485 (9th Cir.1984); Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195 (2d Cir.1983), rev'd
on other grounds, 471 U.S. 539 (1985); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.), cert. denied, 449 U.S.
841 (1980); Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of
History after Hoehling v. Universal City Studios, 29 BULL. COPYRIGHT SOC'Y U.S.A. 647 (1982).

183
See supra notes 127-33 and accompanying text. In the years between 1959, see Bradbury v. Columbia Broadcasting
Sys., 174 F.Supp. 733 (S.D.Cal.1959), rev'd, 287 F.2d 478 (9th Cir.), cert. dismissed, 368 U.S. 801 (1961), and 1976, see Reyher
v. Children's Television Workshop, 533 F.2d 87 (2d Cir.), cert. denied, 429 U.S. 980 (1976), the scenes a faire doctrine was cited
by no court and appeared to be moribund.
184
See, e.g., Narell v. Freeman, 10 U.S.P.Q.2d (BNA) 1596 (9th Cir.1989) (historical nonfiction); Data East USA, Inc.
v. Epyx, Inc., 862 F.2d 204 (9th Cir.1988) (computer games); Durham Indus. v. Tomy Corp., 630 F.2d 905 (2d Cir.1980)
(dolls); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.) (same), cert. denied, 449 U.S. 841 (1980); Hartman v.
Hallmark Cards, Inc., 639 F.Supp. 816 (W.D.Mo.1986) (greeting cards), aff'd, 833 F.2d 117 (8th Cir.1987).
185
See, e.g., National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982).
narrowly.186

III. THEORETICAL JUSTIFICATIONS

Copyright protection, once limited to maps, charts, and books,187 now extends to an extraordinary variety
of products that saturate our society. Copyright cases no longer can be classified within subject-matter
lines, and courts and commentators have sought to articulate general principles dividing what copyright
protects or should protect from what it does not or should not. 188

Meanwhile, the term "public domain"' has fallen out of fashion as a description of unprotectible aspects
of copyrighted works. Courts and commentators speak instead of "uncopyrightable"' or "nonprotectible"'
material.189 The distinction is a minor one, but the new vocabulary obscures the positive rationale for
denying copyright protection and, instead, draws attention to the negative rationales. As Congress has
enacted statutes expanding the range of subject matter entitled to copyright,190 the categories of material
that copyright does not protect have struck many as increasingly anomalous.191 Protectors of the public
domain have found themselves on the defensive. When they have explained why it is that copyright should
not protect ideas, facts, stock scenes, titles, or characters, they have attempted to explain what aspects of
copyrightable works of authorship it is that ideas, facts, stock scenes, titles, or characters lack.192 These
arguments have in turn been vulnerable to attack.

The debate over copyright in factual works furnishes one example of this phenomenon. Copyright does
not protect facts, theories about facts, or the research that yields them, it is said, because facts are not

186
See, e.g., Whelan Assocs. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S.
1031 (1987); E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485, 1498 (D.Minn.1985). See generally Karjala,
supra note 71.
187
See supra note 77.
188
See, e.g., Gracen v. Bradford Exch., 698 F.2d 300 (7th Cir.1983); 1 P. GOLDSTEIN, supra note 50, § 2.3; OFFICE
OF TECHNOLOGY ASSESSMENT, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND
INFORMATION 59-94 (1986); Goldstein, supra note 7; Hughes, supra note 41; Landes & Posner, supra note 7.
189
See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir.1981); A. LATMAN, THE
COPYRIGHT LAW: HOWELL'S COPYRIGHT LAW REVISED AND THE 1976 ACT 29-45 (5th ed. 1979); 2 M. NIMMER
& D. NIMMER, supra note 2, § 8.01[D]; Nimmer, Inroads on Copyright Protection, 64 HARV.L.REV. 1125, 1130-33 (1951).
190
See generally A. LATMAN, R. GORMAN & J. GINSBURG, supra note 22, at 8-12, 31-32; Litman, supra note
96.
191
See, e.g., 1 M. NIMMER & D. NIMMER, supra note 2, § 2.15 (typeface designs); id. § 2.16 (titles); Birmingham,
A Critical Analysis of the Infringement of Ideas, 5 COPYRIGHT L.SYMP. (ASCAP) 107, 125 (1954) (ideas); Fleischmann,
supra note 16, at 15-16 (individual recorded musical notes); Hill, supra note 6, at 58-59 (facts); Note, Copyright Infringement:
An Argument for the Elimination of the Scenes a Faire Doctrine, 5 COMM/ENT L.J. 147 (1982).

192
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 2.7.3; B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT
45-46 (1967).
original.193 The late Professor Melville Nimmer described it this way:
The "discoverer"' of a scientific fact as to the nature of the physical world, an historic fact, a
contemporary news event, or any other "fact,"' may not claim to be the "author"' of that fact. If anyone may
claim authorship of facts, it must be the Supreme Author of us all. The discoverer merely finds and records.
He may not claim that facts are "original"' to him, although there may be originality and hence authorship
in the manner of reporting, i.e., the "expression"' of the facts. Since copyright may only be conferred upon
"authors,"' it follows that quite apart from their status as "ideas,"' discoveries as facts per se may not be the
subject of copyright.194

Thus articulated, the argument invites its own rebuke. As Professor Jane Ginsburg has aptly demonstrated,
such an analysis rests on what Ginsburg has dubbed the "Platonic fact precept."' 195 The fallacy of the
Platonic fact precept is its tenet that facts are already there, suspended in the ether for the hapless
researcher to stumble upon.196 Facts, however, do not exist independently of the lenses through which they
are viewed. Those lenses may be theoretical, methodological, or perceptual; they may be colored by
experience or bias or may be shaped by the scope of the researcher's inquiry.197 Researchers seeking to
unearth facts must sift through available evidence, design new avenues of inquiry, choose among myriad
conflicting indicia, and supply interpretive paradigms to structure incoherent collections of minutia.198
Researchers can thus be said to be composing their facts as they go along.199 In this sense, facts are no
more "out there"' than are plots, words, or sculptural forms.200 If one discards the Platonic fact precept,
it is hard to maintain the position that facts and theories about facts are still less original than other works
of authorship that copyright protects.201 Denial of protection must be predicated on some alternate ground.

A proponent of the economic analysis of law might argue that because copyright's purpose is to provide
incentives for the creation of works that are valued by society at large, copyright should protect the portions
of such works that society most values.202 Because the most valuable contribution of many factual works

193
See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.1981); 1 M. NIMMER & D. NIMMER,
supra note 2, § 2.11[A]; Abramson, How Much Copying Under Copyright? Contradictions, Paradoxes, Inconsistencies, 61
TEMP.L.Q. 133, 136 (1988); Denicola, supra note 14, at 525; Gorman, supra note 13, at 571 n. 29.
194
Nimmer, The Subject Matter of Copyright Under the Act of 1976, 24 UCLA L.REV. 978, 1015-16 (1977)
(footnotes omitted).
195
Ginsburg, supra note 182, at 658.
196
See id.
197
See, e.g., S. GOULD, WONDERFUL LIFE: THE BURGESS SHALE AND THE NATURE OF HISTORY
240-77 (1989).
198
See, e.g., id. at 277-91.
199
See, e.g., Gleick, Survival of the Luckiest, N.Y. Times, Oct. 22, 1989, § 7 (Book Review), at 1, col. 3 (review of S.
GOULD, supra note 197).
200
Cf. Kakutani, Books of the Times: A Cast of Characters on History's Indifferent Sea, N.Y. Times, Sept. 29, 1989,
at C33, col. 1 (review of J. BARNES, A HISTORY OF THE WORLD IN 10 1/2 CHAPTERS (1989)).
201
See, e.g., Hill, supra note 6, at 58-59.
202
See, e.g., National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982); Squires,
Copyright and Compilations in the Computer Era: Old Wine in New Bottles, 24 BULL. COPYRIGHT SOC'Y U.S.A. 18, 44-45
(1977).
is the facts themselves, she might continue, copyright ought to protect those facts. Its failure to do so
arguably deters the appropriate level of investment in fact-finding, which results in under-production of
valuable fact-based works.203 A rival economist might retort that non- copyright incentives already
encourage a plethora of fact-based works;204 a third might suggest that protecting facts would impose
inefficient transaction costs on later authors who wish to incorporate the same facts in their works.205 Each
of these economic arguments has been persuasive to at least one court.206

The unruly brawl among these hypothetical economists illustrates a problem endemic to their approach.
Their models are most helpful when empirical data is available to test their conclusions. In the absence of
empirical data, the result of economic analysis is dictated by the model's placement of the burden of proof.
Economists who begin withthe assumption that the copyright incentive should be no greater than necessary
to encourage authorship will conclude that the case for increased protection is, at best, "not proven."' 207
Economists who start withthe assertion that any diminution of or condition on the copyright incentive should
be eschewed until its proponents demonstrate that it will not, at the margin, deter authorship, will similarly
leave the argument unpersuaded.208 Most arguments over the appropriate scope of copyright protection,
unfortunately, occur in a realm in which empirical data is not only unavailable, but is also literally
uncollectible.

The weary proponent of a vigorous public domain in general, and of a public domain in facts in particular,
turns to precedent as a justification. We should not protect facts, she argues, because a long line of
copyright cases forbids it.209 This argument dissolves when the directory cases are raised.210 Indeed, even
if the directory cases are dismissed as sui generis and fundamentally misconceived, there is ample precedent
deciding almost every copyright issue in almost every conceivable direction. 211 The myriad variations
among decisions make it possible to assemble long lines of cases to support--or refute--any position. The

203
See, e.g., Abramson, supra note 193, at 142-45; Jones, Copyright: Factual Compilations and the Second Circuit, 52
BROOKLYN L.REV. 679 (1986); cf. Comment, Copyright Protection, supra note 5, at 1023.
204
Cf. Breyer, supra note 72, at 309-21 (arguing that abolishing copyright for textbooks would not seriously affect
production).
205
See, e.g., Landes & Posner, supra note 7, at 353.
206
Compare, e.g., National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982), with
Rockford Map Publishers, Inc. v. Directory Serv. Co., 768 F.2d 145 (7th Cir.1985), cert. denied, 474 U.S. 1061 (1986), and
Financial Information, Inc. v. Moody's Investors Serv., 808 F.2d 204 (2d Cir.1986), cert. denied, 484 U.S. 820 (1987). Cf.
Gracen v. Bradford Exch., 698 F.2d 300 (7th Cir.1983).
207
See, e.g., Breyer, supra note 72, at 321-23, 350-51; Fisher, supra note 25, at 1717-19.
208
See, e.g., Brennan, supra note 26.
209
See, e.g., Francione, supra note 71, at 537-39; Leading Cases, The Supreme Court, 1984 Term, 99 HARV.L.REV.
120, 220-22 (1985).
210
See, e.g., National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F.Supp. 89, 95 (N.D.Ill.1982).

211
See supra notes 91-103 and accompanying text.
copyrightability of works of fact is no exception.212

This weakness in the common justifications offered in support of the public domain takes different forms
with respect to different categories of unprotected material. When explaining courts' failure to protect
scenes a faire, some commentators have explained that scenes a faire are indispensable to the expression
of common themes.213 This explanation, if accurate, would pose a particular case of the idea/expression
merger problem,214 denying protection to expression to avoid giving a monopoly in unprotected ideas. Only
when one examines the cases to ascertain what sorts of scenes a faire have been denied protection does
the explanation dissolve. A German beer hall scene may be an expected embellishment in a work exploring
who caused the explosion of the Hindenburg dirigible,215 but it would be difficult to characterize it as
indispensable. Nor is it plausible that the use of sand dollars for currency or seahorses for transportation
would strike a trial court as essential to express the idea of an underwater civilization. 216 The lack of
protection given to scenes a faire seems to lie more in their triteness than their necessity.217 But why that
should be so is rarely explained.218

Indeed, the justifications for the public domain become least satisfactory at the most fundamental level.
Why is it that copyright does not protect ideas? Some writers have echoed the justification for failing to
protect facts by suggesting that ideas have their origin in the public domain.219 Others have implied that
"mere ideas"' may not be worthy of the status of private property. 220 Some authors have suggested that
ideas are not protected because of the strictures imposed on copyright by the first amendment.221 The task
of distinguishing ideas from expression in order to explain why private ownership is inappropriate for one

212
See generally Shipley & Hay, supra note 138, at 129-51, and cases cited therein. Thus, all commentators arguing for
or against protection of particular works or particular rights have some case law on their side and have been arguing not with each
other but past each other.
213
See, e.g., Brinson, Copyrighted Software: Separating the Protected Expression from Unprotected Ideas, A Starting
Point, 29 B.C.L.REV. 803, 814 (1988); Note, Screen Displays are Proper Subject Matter for Copyright Protection, 1988
U.ILL.L.REV. 757, 766.
214
See supra notes 94-95 and accompanying text.
215
See Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir.), cert. denied, 449 U.S. 841 (1980).
216
See Evans v. Wallace Berrie & Co., 681 F.Supp. 813 (S.D.Fla.1988).
217
Accord Ginsburg, supra note 182, at 664.
218
One might argue that the very triteness of scenes a faire dispels the inference that they were copied from plaintiff's
work, were it not for the fact that the doctrine is most frequently invoked to privilege copying that has been otherwise
established. See, e.g., cases cited supra note 184.
219
See, e.g., Patterson, supra note 13, at 7; see also Hughes, supra note 41, at 311-15 (exploring same suggestion in the
context of Lockean labor theory).
220
See, e.g., 3 M. NIMMER & D. NIMMER, supra note 2, § 13.03[A].
221
See, e.g., M. NIMMER, NIMMER ON FREEDOM OF SPEECH § 2.05[C][2][b], at 2-62 to -69 (1984);
Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 CALIF.L.REV. 283,
289-91 (1979).
but desirable for the other, however, remains elusive.222

IV. ON ORIGINALITY

To return to first principles, let us go back to the concept of copyright as property. The realm protected
by copyright is privately owned; the unprotected realm is the public domain.223 What we rely on in place
of physical borders, to divide the privately-owned from the commons and to draw lines among the various
parcels in private ownership, is copyright law's concept of originality.224

Copyright's threshold requirement of originality is quite modest. It requires neither newness nor creativity,
but merely creation without any copying.225 The classic formulation is Judge Learned Hand's oft-quoted
aside:
Borrowed the work must indeed not be, for a plagiarist is not himself pro tanto an "author"'; but if by
some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he
would be an "author,"' and, if he copyrighted it, others might not copy that poem, though they might of
course copy Keats's.226

The man who never knew Keats but composed an identical Ode by magic is a mythical fellow who has not
yet troubled the courts, but he is useful for illustrating black-letter law. Imagine a slight variation: two
schoolboys encounter Keats' Ode when their teacher reads it aloud to them in class. Neither pays close
attention. The first of the boys forgets the Ode utterly; the second has no conscious memory of the poem,
but Keats' turns of phrase stick in his subconscious mind. Both boys grow up to be poets with no further
contact with the works of Keats, and each composes the Ode on a Grecian Urn with no awareness that
Keats has anticipated him. The similarities of the first poet's poem to that of Keats are sheer coincidence,
and he is entitled to copyright his poem. The second poet, of course, relied unknowingly on his
subconscious memory, and he is not entitled to a copyright because he copied his poem, albeit
subconsciously, from Keats.

Examine another variation that is slightly more plausible. Each of our young men has joined the Quality

222
Indeed, most courts and commentators are satisfied to invoke Learned Hand's explanation that there is no way to
draw such a line: "Nobody has ever been able to fix that boundary, and nobody ever can."' Nichols v. Universal Pictures Corp.,
45 F.2d 119, 121 (2d Cir.), cert. denied, 282 U.S. 902 (1930). In a recent article, Justin Hughes suggests that a useful
reformulation of the distinction between ideas and expression within the context of Lockean labor theory would assimilate the
expression portion of the distinction to the portion of a work that requires labor in its execution. See Hughes, supra note 41, at
305-14.
223
See supra notes 60-71 and accompanying text.
224
See supra notes 52-58 and accompanying text.
225
See, e.g., Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir.1985), cert. denied, 474 U.S.
1059 (1986); 1 M. NIMMER & D. NIMMER, supra note 2, § 2.01[A]; W. PATRY, supra note 51, at 23-24.
226
Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940); see, e.g., Olson,
Copyright Originality, 48 MO.L.REV. 29, 32 n. 16 (1983).
Paperback Book Club. The Club periodically sends them unsolicited books; each glances at them, perhaps
reads them through, and shelves them according to his mood. One Quality Paperback selection received
by both is a historical novel recounting the lives of a family of black slaves and their descendants. Both of
our subjects glance through the novel before consigning it to the bookshelf. As in the prior example, the first
fellowbanishes it entirely from his mind. The second has no conscious recollection of the book, but portions
of it lurk in his subconscious memory. Both men proceed to write and publish historical novels about
enslaved families, and the author of the Quality Paperback Book Club selection sues both of them for
copyright infringement. The books are undeniably similar to hers in various expressive details. Both
defendants testify honestly that they were not aware of copying anybody's prior book. According to settled
authority, the second is liable for copyright infringement; the first is not.227

By now it should be obvious that the law purports to draw lines on the basis of "facts"' that cannot be
ascertained. While our two fictitious authors may call for opposite legal conclusions in the world of
black-letter law, we have no way of telling them apart in the real world. The problem is not merely that we
must determine the credibility of an author's account of his intentions; rather, the problem is that the author's
intentions are irrelevant to the determination of originality versus copying.228 Copyright infringement
requires neither bad motive nor guilty mind.

The determination of originality, however, is our benchmark for ascertaining the scope of an author's
private property in the contents of her works. The determination of copying is our gauge for ascertaining
whether she has trespassed on another author's rights. And only when we can be sure that she has never
encountered the similar work of a prior author can we confidently detect the difference between the two.
Courts have avoided confronting this paradox through the use of procedural devices and presumptions that
allocate the burden of proof. But where an ultimate fact is unknowable, the allocation of the burden of proof
is determinative.

Thus, in an infringement action, a plaintiff may prove that the defendant copied her work by introducing
evidence that the defendant had access to her work and produced a work that is substantially similar.229
According to most authorities, the plaintiff's evidence of access and substantial similarity shifts the burden

227
See Alexander v. Haley, 460 F.Supp. 40 (S.D.N.Y.1978); see, e.g., Bright Tunes Music Corp. v. Harrisongs Music,
Ltd., 420 F.Supp. 177 (S.D.N.Y.1976), aff'd sub nom. ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d
Cir.1983); Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y.1924).
228
See, e.g., W. PATRY, supra note 51, at 203-04. The author's intentions are relevant in calculating damages, see 17
U.S.C. § 504(c)(2) (1988), but not in determining liability for infringement.
229
See, e.g., ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir.1983); Arnstein v. Porter, 154 F.2d
464 (2d Cir.1946), cert. denied, 330 U.S. 851 (1947). Access is typically defined as a "reasonable opportunity to view."' See 3
M. NIMMER & D. NIMMER, supra note 2, § 13.02[A]. Evidence that plaintiff's work has been widely disseminated will
suffice. See id. at 13-13 & n. 15. The probative value of the combination of access and substantial similarity as circumstantial
evidence of copying has eroded significantly in the years since the test developed because of the increasingly broad dissemination
of myriad works. A reasonable opportunity to hear a copyrighted song, for example, was a more significant event before the
development of nationwide radio and television broadcasting. In today's world, most of us have "access"' to any work that has
received even slight commercial exploitation. Courts have not, however, altered their definition of access or the
access-plus-substantial-similarity equation to take account of the modern explosion in the dissemination of works.
of persuasion to the defendant to disprove copying.230 The defendant is permitted to rebut the inference
by introducing evidence that the accused work was independently created, that is, not even subconsciously
copied from the plaintiff's.231

If the defendant cannot disprove exposure to the plaintiff's work, however, it is difficult--to say the
least--for her to demonstrate that the similarities between the works reflect neither conscious nor
unconscious copying.232 Lacking such evidence, the defendant might try another strategy, realizing that no
plaintiff's work could surmount the test of copying to which defendants' works are subjected. If the
plaintiff's work is not itself original, then the plaintiff is not entitled to a copyright.233 Defendant, therefore,
tries to introduce evidence impeaching the originality of the plaintiff's work by producing similar works to
which plaintiff had access and probably subconsciously copied.234 Plaintiff, however, waves her certificate
of copyright registration (a prerequisite to suit),235 which is prima facie evidence of the validity of her
copyright, including the originality of her work.236 Since defendant cannot produce direct evidence that
plaintiff copied the prior similar works and does not receive the benefit of an
access-plus-substantial-similarity inference, the attack on the plaintiff's copyright comes to naught.237 And
defendant's own certificate of registration has no probative value as a defensive measure.238

Without questioning the value of such presumptions and procedural devices as housekeeping measures
to make resolution of copyright infringement suits possible, I should mention that the Copyright Office has
granted the certificate of registration for plaintiff's work without making any determination of the work's

230
See, e.g., Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir.1985), cert. denied, 474 U.S.
1059 (1986); Roth Greeting Cards v. United Cards Co., 429 F.2d 1106 (9th Cir.1970). See generally 3 M. NIMMER & D.
NIMMER, supra note 2, § 13.01[B]; W. PATRY, supra note 51, at 202-203 & n. 50, and cases cited therein. But see Keeler
Brass Co. v. Continental Brass Co., 862 F.2d 1063 (4th Cir.1988).

231
See, e.g., Herbert v. Wicklund, 744 F.2d 218 (1st Cir.1981).
232
See 2 P. GOLDSTEIN, supra note 50, § 7.2.2, at 21.
233
See supra notes 52-58 and accompanying text.
234
See, e.g., Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir.1988); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d
49 (2d Cir.1936), aff'd, 309 U.S. 390 (1940); Baron v. Leo Feist, Inc., 78 F.Supp. 686 (S.D.N.Y.1948), aff'd, 173 F.2d 288
(1949); Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896 (S.D.N.Y.1935).
235
See 17 U.S.C. § 411 (1988). Registration prior to suit is optional only for suitors claiming infringement of works
that ori inated or were first published in countries other than the United States. See id.
236
See 3 M. NIMMER & D. NIMMER, supra note 2, §§ 12.11[A], 13.01[A]. The statute provides that a certificate
of registration obtained within five years of the first publication of the copyrighted work is "prima facie evidence of the validity
of the copyright and of the facts stated in the certificate."' 17 U.S.C. § 410(c) (1988). The evidentiary weight of less prompt
registration certificates is left to the court's discretion. Id.
237
See, e.g., Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir.1988).
238
See 3 M. NIMMER & D. NIMMER, supra note 2, § 12.11[A], at 12-80.1 n. 14. My usage of plaintiff and
defendant refers to the typical case; in some cases the parties may be realigned. Thus, courts have given evidentiary effect to
certificates of registration introduced by nominal parties defendant who assert copyright infringement counterclaims or defend
their ownership of registered copyrights against the claims of former employees. See, e.g., Murray v. Gelderman, 566 F.2d 1307
(5th Cir.1978); Sandwiches, Inc. v. Wendy's Int'l, Inc., 654 F.Supp. 1066 (E.D.Wis.1987).
originality.239 Indeed, how could it?240

There are two conclusions I wish to draw from the foregoing discussion. The first is that the concept of
originality is a poor substitute for tangible boundaries among parcels of intellectual property because it is
inherently unascertainable. The second conclusion is more controversial: The concept of authorship (within
the meaning of the copyright law) and the concept of infringement (also within the meaning of the copyright
law) are, for practical purposes, synonymous. I will discuss each of these conclusions in turn.

A. The Myth of the Non-Infringing Ode

Originality, it is said, is the means that copyright uses to bound the property that an author may claim under
copyright.241 Prominent commentators discuss originality as if it were an actual legal condition that a court
could ascertain. 242 Judicial decisions similarly invoke the concept of originality. They do not, however,
essay the task of determining whether and to what extent a plaintiff's work is original.243 The procedural
devices mentioned earlier permit them to avoid that particularly slippery task.244

The corollary that copyright tolerates a plurality of similar works so long as none of them is the product
of unauthorized copying is also a bedrock concept of the law and is equally chimerical. Learned Hand's
author of a second, identical Ode on a Grecian Urn could not successfully rebut Keats' claim of copying
with evidence of independent creation because the finder of fact routinely presumes that close similarity

239
See H.R.REP. NO. 1476, 94th Cong., 2d Sess. 156-57, reprinted in 1976 U.S.CODE CONG. & ADMIN.NEWS
5659, 5773. Indeed, under the Copyright Office's "'rule of doubt,"' it will frequently register copyright in a work that it believes
to lack the requisite original authorship. See, e.g., Ronald Litoff, Ltd. v. Am. Express Co., 621 F.Supp. 981 (S.D.N.Y.1985). A
certificate of registration granted under the Copyright Office's rule of doubt is nonetheless prima facie evidence of the validity of
plaintiff's copyright. See, e.g., id.

240
But see a short story about a Copyright Office that does: S. ROBINSON, supra note 1. In the story, the rate of
copyright registration applications decreased significantly. Even so, the Copyright Office rejected two out of every five musical
works submitted for registration after a preliminary computer search and refused to register many more musical works after
diligent inquiry. Composers' productivity plummeted and the best of them committed suicide. See id. at 16-17.
241
See, e.g., Yankwich, supra note 52, at 457.
242
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 1.2.2.3; 1 M. NIMMER & D. NIMMER, supra note 2, § 2.01; W.
PATRY, supra note 51, at 22-24.
243
Two notable exceptions are the decisions in Gracen v. Bradford Exch., 698 F.2d 300 (7th Cir.1983), and Donald v.
Zack Meyer's T.V. Sales & Serv., 426 F.2d 1027 (5th Cir.1970), cert. denied, 400 U.S. 992 (1971), in which each court held
plaintiff's work to be insufficiently original to qualify for copyright at all. The only context in which courts have commonly
examined the originality of plaintiff's work is when plaintiff claims a copyright on an adaptation of an identified preexisting
work. See, e.g., L. Battlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.1976). Such courts have frequently equated the required
originality with the presence of a non-trivial variation from the underlying work. See, e.g., id. See generally W. PATRY, supra
note 51, at 24- 28. Although a number of recent cases have upheld the Register's refusal to register a work on the grounds of
insufficient original authorship, see, e.g., John Mueller & Co. v. New York Arrows Soccer Team, 802 F.2d 989 (8th Cir.1986);
Atari Games Corp. v. Oman, 693 F.Supp. 1204 (D.D.C.1988), rev'd on other grounds, 888 F.2d 878 (D.C.Cir.1989), they have
rested their determination on insufficiency of authorship rather than on absence of originality.
244
See supra notes 229-40 and accompanying text.
itself negates any evidence of independent creation.245

This is not to suggest that every copyright claim succeeds, or even that most succeed. It is merely to
suggest that despite the esteem which the concept of originality commands in copyright law, the concept
is irrelevant to the resolution of actual cases. Instead, courts have evolved flexible principles that allow the
finders of fact to decide infringement cases in accord with their gut impressions.

The first of these principles is the rule that the similarity between a plaintiff's and a defendant's works must
be "substantial"' to support an inference of copying.246 Substantiality has both qualitative and quantitative
elements.247 The determination of substantial similarity is largely subjective, thus permitting the finder of fact
to give effect to its intuitive judgment of the perceived equities in a case.248

The second principle allowing resolution of actual cases on subjective grounds is the privilege of fair
use.249 Fair use is the darling of the commentators, who routinely nominate it to assuage any danger of
overprotection; 250 it has received much more limited application by contemporary courts. 251 It can
operate as a safety valve to rescue worthy defendants from the perceived injustice of an infringement
judgment should the substantiality wicket fail to operate.252

245
E.g., Bradbury v. Columbia Broadcasting Sys., 287 F.2d 478 (9th Cir.), cert. dismissed, 368 U.S. 801 (1961); see 2
P. GOLDSTEIN, supra note 50, § 7.1, at 4-5, § 7.2, at 9, 13; see, e.g., Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir.1988);
Champion Map Corp. v. Twin Printing Co., 350 F.Supp. 1332 (E.D.N.C.1971); Miller Studios, Inc. v. Pacific Import Co., 39
F.R.D. 62 (S.D.N.Y.1965); Baron v. Leo Feist, Inc., 78 F.Supp. 686 (S.D.N.Y.1948), aff'd, 173 F.2d 288 (1949).

246
See, e.g., Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946), cert. denied, 330 U.S. 851 (1947). See generally Cohen,
Masking Copyright Decisionmaking: The Meaninglessness of Substantial Similarity, 20 U.C. DAVIS L.REV. 719 (1987). There
has been longstanding confusion among courts and commentators about the relevance of substantial similarity if there is other
evidence of copying in the record. Compare, e.g., Arnstein v. Porter, 154 F.2d at 472 ("Assuming that adequate proof is made of
copying, that is not enough; for there can be 'permissible copying' which is not illicit."'), with id. at 476 n. 1 (Clark, J., dissenting)
("If there is actual copying, it is actionable, and there are no degrees; what we are dealing with is the claim of similarities
sufficient to justify the inference of copying."'). See also, e.g., Illinois Bell Tel. Co. v. Haines & Co., 905 F.2d 1081, 1086 (7th
Cir.1990) ("Establishing substantial similarity is necessary only when direct evidence of copying is unavailable."').
247
See W. PATRY, supra note 51, at 193; Cohen, supra note 246, at 741- 44.
248
See Cohen, supra note 246, at 735-44.
249
17 U.S.C. § 107 (1988); see Leval, Fair Use or Foul? The Nineteenth Donald C. Brace Memorial Lecture, 36 J.
COPYRIGHT SOC'Y U.S.A. 167, 167 (1989) ("It is now my duty to explain to you what we mean by fair use. And do you
know what, ladies and gentlemen of the jury, I can't. No one can. We don't know."').
250
See, e.g., Denicola, supra note 14, at 538-40; Ginsburg, supra note 182, at 671-73; Libott, Round the Prickly Pear:
The Idea-Expression Fallacy in a Mass Communications World, 16 COPYRIGHT L.SYMP. (ASCAP) 30 (1968); Patterson,
supra note 13.
251
See Leval, supra note 249; Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L.REV. 857,
896-99 (1987); Reichman, supra note 71, at 691; infra note 252.
252
Fair use excused a wide variety of uses found technically infringing during the 1960s, 1970s, and early 1980s. See,
e.g., Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir.1980); Rosemont Enters. v. Random
House, Inc., 366 F.2d 303 (2d Cir.1966), cert. denied, 385 U.S. 1009 (1967); Pillsbury Co. v. Milky Way Prods., Inc., 215
U.S.P.Q. (BNA) 124 (N.D.Ga.1982); Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y.1968). In two decisions in
the mid-1980s, however, the Supreme Court sharply restricted the availability of the fair use privilege for defendants engaged in
 In practice, these two principles are often conflated,253 but they allow the system to achieve rough justice
in actual disputes. The fact that the borders supposedly supplied by the concept of originality are entirely
illusory has not much hampered courts in deciding the cases before them. If the concept of originality in
copyright cases, however, is indeed as chimerical as I have described, then its status as the sine qua non
of copyright254 raises intriguing questions.

What is it about the concept of originality that so inspires our confidence that we ignore the fact that it fails
to perform the tasks we assign to it? In other property contexts, we might find that more disturbing.
Imagine, for example, that the land on which my house sits is adjacent to my neighbor's, and that
somewhere between our houses is an apple tree. Both of us avail ourselves of its apples, but we do not
know to which of us it belongs. Should the issue arise, we believe that somewhere in the bowels of the City
Office of Deeds is a recorded document that supplies the answer. Believing that to be the case, neither I
nor my neighbor bothers about actually visiting the Officer of Deeds to determine who owns the tree. If the
Office of Deeds is in fact a mere myth, a sign on the door of an untenanted office, neither of us will discover
that fact, and neither will worry that the boundaries of our properties cannot be proved.

One day, however, some folks across the street go to court in a dispute over which of them owns a cherry
tree. Both confidently expect the evidence from the Office of Deeds to resolve the litigation; instead,
however, the court decides the case by awarding the tree to the party who makes the best cherry pie. One
would expect such a ruling to cause concern; at the least, one would expect real estate lawyers, realtors,
and banks to begin to advise their customers to take up baking with a vengeance. After a series of similar
rulings, scholars would write articles bemoaning the failure of courts to consult the Office of Deeds; courts
would comment that the system seems unjust. Landowners inept at baking and the banks that hold their
mortgages would soon insist on some alternative method for settling title to trees. Newspapers would
publish editorials exhorting the city either to put a real Office of Deeds in the room with that sign on the
door or to replace it with something equally concrete.

In the alternate universe of copyright law, of course, no analogous commotion has occurred. The
continued esteem for the concept of originality as the rule for settling title to copyrights cannot stem from
its pragmatic advantages in drawing actual boundaries, so it must be attributable to its other characteristics.
Two such characteristics come to mind. The first is that the concept of originality must have enough
symbolic power to subdue its vaporous reality. This symbolic power is rooted in its apparent reflection of

commercial endeavors by establishing a presumption that any commercial use of a copyrighted work was not fair. See Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985); Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984). Some
courts have allowed defendants to rebut the presumption of unfairness with a modest showing, see, e.g., Fisher v. Dees, 794 F.2d
432 (9th Cir.1986), but most courts have interpreted the presumption to block the availability of the fair use privilege by any
defendant in commercial competition with plaintiff. See, e.g., West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219
(8th Cir.1986), cert. denied, 479 U.S. 1070 (1987). The decreased availability of the fair use privilege has increased the pressure
on the public domain.

253
See, e.g., Cohen, supra note 246, at 745-46; Francione, supra note 71, at 575-79.
254
E.g., Kamar Int'l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir.1981).
what we would like to believe about authors and the authorship process. The second characteristic is that
it must have a companion, some other force in its universe that dissipates the pressure to draw reliable
boundaries. That companion, of course, is the public domain. The two characteristics are not unrelated.

B. About Authorship

Let me return to the conclusion that I labeled controversial earlier: Copyright law defines authorship and
infringement so that they are indistinguishable in a concrete world.255 An author transforms her memories,
experiences, inspirations, and influences into a new work. That work inevitably echoes expressive elements
of prior works.256 Whether it infringes the copyrights in the prior works depends upon the conscious and
subconscious processes within the author's mind. We cannot verify them; neither can she. If this author's
work lands in a copyright suit, the legal conclusions that will be drawn will depend in the first instance on
facts (such as whether she is suing or being sued and whether she is holding a certificate of registration) that
have nothing to do with the nature of the authorship process.

Why does this not seem more disturbing? Perhaps because the story seems so hypothetical. It might
describe a quandary faced by the author of Terror in Bermuda who confesses to a glancing acquaintance
with the earlier Danger in Jamaica, but it is not going to happen to real authors. The idea that subconscious
copying occurs rarely and only at the margin springs from a fancy that I term the "romantic model of
authorship."' According to the romantic model, creative processes are magical and are, therefore, likely to
produce unique expression. 257 The expression is unique because the real author is using words, musical
notes, shapes, or colors to clothe impulses that come from within her singular inner being. 258 This
mysterious inner being may be the repository of impressions, experiences, and the work of other authors,259
but the author's individual sensibility recasts that raw material into something distinct and unrecognizable.

Indeed, some would deny that "recast"' is an appropriate verb to use in describing the creative process.
An author's artistic sensibility may be affected or shaped by what she experiences, they would argue, but
the images of those experiences enter her subconscious on a one-way journey. What the subconscious
disgorges is no mere recasting of preexisting material, but something wholly new. Anything less would be

255
A critic might object that the paradigmatic case of copyright infringement involves intentional piracy, and that I
rely too heavily on the fact that copyright imposes liability for unintentional copying. Imposition of liability without regard to
intent might merely reflect an understanding that intent is easy to deny and difficult to prove. I confess that I find the fact that
intent is not an element of copyright infringement to be central to the copyright scheme; it is one of the most important facets of
copyright's property-like nature. I am also, I expect, much less cynical than some others about the motives animating the
behavior of most defendants in plagiarism suits. My reading of the cases persuades me that few defendants in this sort of suit set
out to break the law or to steal someone else's creations. They seem to succeed in doing so despite, rather than because of, their
designs.
256
See supra notes 7-12 and accompanying text; infra text accompanying note 266.
257
See, e.g., R. CURTIS, BEYOND THE BESTSELLER: A LITERARY AGENT TAKES YOU INSIDE THE
BOOK BUSINESS 38 (1989). For the proposition that coincidental similarity of expression is so unlikely that we can safely
disregard it, see, for example, 2 P. GOLDSTEIN, supra note 50, § 7.2.1, at 9; Landes & Posner, supra note 7, at 344-46.
258
See, e.g., Hersey, Introduction to THE WRITER'S CRAFT 3, 7-9 (J. Hersey ed. 1974).
259
See, e.g., Bowen, Notes on Writing a Novel, in THE WRITER'S CRAFT, supra note 258, at 81.
theft.260

This romantic model of authorship is implicit in much commentary about copyright,261 and it underlies our
tolerance for the presumptions and procedural devices that seem to make the concept of originality do the
work that the law assigns to it. Because this model establishes the distinction between creation and copying
as central to our conception of authorship, copyrightability is identified with originality: A work is
copyrightable if and to the extent that it is original, or created, rather than copied. We know that real
authors create rather than copy, so we are comfortable with a presumption that the works they register for
copyright are original. We believe in the idea that expression is created from thin air262 and the correlative
notion that the universe of creative expression is infinite, so we are ready to conclude that similarity of
expression must reflect plagiarism.263 And we worry not a bit that our conclusions are unverifiable because
they reflect our intuitive beliefs about reality.

Let me offer, however, a competing metaphor for the authorship process, drawn from the case of Alfred
Bell & Co. v. Catalda Fine Arts, Inc.264 In discussing the copyrightability of mezzotint engravings that
reproduced public domain paintings, Judge Jerome Frank observed: "A copyist's bad eyesight or defective
musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having
hit upon such a variation unintentionally, the 'author' may adopt it as his and copyright it."' 265 This
formulation depicts authorship as a more modest achievement. Of course, Judge Frank was addressing the
specific situation of the author who imperfectly reproduces a preexisting work, but this image of the
individual whose apparent creativity is the product of imperfect eyesight, flawed execution, or unrelated

260
See, e.g., T. MALLON, STOLEN WORDS: FORAYS INTO THE ORIGINS AND RAVAGES OF
PLAGIARISM (1989).

261
See, e.g., Dreyfuss, The Creative Employee and the Copyright Act of 1976, 54 U.CHI.L.REV. 590, 605-26 (1987);
Lacey, Of Bread and Roses and Copyrights, 1989 DUKE L.J. 1532, 1561-62; Ladd, supra note 4; Bowker Memorial Lecture by
Barbara Ringer, The Demonology of Copyright, in New York City (Oct. 24, 1974), reprinted in MODERN COPYRIGHT
FUNDAMENTALS: KEY WRITINGS ON TECHNOLOGICAL AND OTHER ISSUES 24 (B. Weil & B. Polansky 1985).

262
This intuitive endorsement of the concept of originality may be in part responsible for the unease over copyright in
works that are interpretations of preexisting works. See, e.g., Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir.1983).
Conductors' interpretations of the musical works that their orchestras perform surely reflect authorship. Actors' portrayals of
the roles that they act, directors' productions of the scripts that they mount, and violinists' renditions of the sonatas that they
play cannot be distinguished convincingly from the other sorts of authorship that secure copyright protection. See, e.g., Note,
Copyright in the Stage Direction of a Broadway Musical, 8 COLUM.-VLA J. ART & L. 309 (1982). The copyrightability of
such authorship nonetheless remains controversial. See id.; U.S. COPYRIGHT OFFICE, TECHNOLOGICAL ALTERATIONS
TO MOTION PICTURES AND OTHER AUDIOVISUAL WORKS 161 (1989). The statute does grant copyright to sound
recordings of preexisting musical works, see 17 U.S.C. § 102(a)(7) (1988), but gives them fewer and more conditional rights than
it accords to other works of authorship. See 17 U.S.C. § 114. Because it is difficult to isolate the contribution of an author
interpreting a preexisting work from the expression already embodied in or dictated by that work, copyright protection for
conductors, actors, directors, or violinists may seem inappropriate to some adherents of the romantic model of authorship.
263
See, e.g., T. MALLON, supra note 260, at 111, 120.
264
191 F.2d 99 (2d Cir.1951).
265
Id. at 105 (footnotes omitted).
circumstances can serve as a metaphor for authorship in general. The metaphor suggests that transformation
is the essence of the authorship process. Some of this transformation is purposeful; some of it is inadvertent;
much of it is the product of an author's peculiar astigmatic vision.

An author, be she writer, composer, or sculptor, seeks to communicate her own expression of the world.
Her views of the world are shaped by her experiences, by the other works of authorship she has absorbed
(which are also her experiences), and by the interaction between the two. Her brain has not organized all
of this into neat, separable piles entitled "things that happened to me,"' "things I read once,"' and "things I
thought up in a vacuum"' to enable her to draw the elements of her works of authorship from the correct
pile. She did not, after all, experience them so discretely. A snatch of a tune she heard was infected by the
shape of the place where she was sitting when she heard it; her sense of a pattern she saw was colored by
that day's weather; a conversation she overheard was tainted by the book that she was reading at the time.
Her memories of the song, the pattern, the conversation, filtered through her experience, may in fact seem
quite unlike the objects she believes they represent. The counterpoint between a sound from one memory
and a smell from another may express something quite different from what either seems to say alone. But
when the author mines the raw material for her next work, significant portions of it will be the stuff of the
outside world mediated by her experience. It is unsurprising, then, that parts of her work will echo the
works of others.266

To the author engaged in finding concrete form for immaterial impulses, each phrase, tone, or configuration
of expression may seem new at the moment it takes shape. The author will often not recognize the
antecedents that she has absorbed in the past and recasts and recombines as she works. Such amnesia
about the sources of one's diction is a blessing that enables the work to proceed without the paralysis that
would follow from examining each accretion for echoes of prior works.

My characterization of authorship as a combination of absorption, astigmatism, and amnesia is not

intended to diminish its merit. Indeed, my position is that this mixture is precisely the process that yields the
works of authorship we wish to encourage through the copyright law. The strong form of this argument is
that all authorship is the product of astigmatic repackaging of others' expression, but this strong form is
unnecessary for our purposes. We can rely instead on a milder and hardly controversial variation: All works
of authorship, even the most creative, include some elements adapted from raw material that the author first

266
Compare G. LIGHTFOOT, If You Could Read My Mind, on IF YOU COULD READ MY MIND (Reprise
1970) with M. MASSER & L. CREED, The Greatest Love of All, on WHITNEY HOUSTON (Arista 1985). See also Chow,
Locus Looks at Books: Reviews by Dan Chow, LOCUS, Sept. 1989, at 27, 27-28 (reviewing D. SIMMONS, HYPERION
(1989) as a repackaging of Ingmar Bergman's screenplay The Seventh Seal); Miller, Locus Looks at Books: Reviews by Faren
Miller, LOCUS, Sept. 1989, at 15, 64 (calling same book a "literary farrago"' with elements of "Chaucer, Keats, Gibson, Niven
(and more)."'); Whitmore, Locus Looks at Books: Reviews by Tom Whitmore, LOCUS, Sept. 1989, at 25 (reviewing same book
as "a strange mix of John Keats, Geoffrey Chaucer, apocalyptic religion, time travel and int rstellar political intrigue."'); Kakutani,
Books of the Times: World War II Los Angeles, as a Boy Sees It, N.Y. Times, Oct. 3, 1989, at C21, col. 1 (review of R.
DEMARINIS, THE YEAR OF THE ZINC PENNY (1989), noting "echoes throughout the narrative of the movies 'Radio Days',
'Hope and Glory' and 'Empire of the Sun' ").
encountered in someone else's works.267 If this description is accurate, it implies that the romantic model
of authorship, taken seriously, would do grave disservice to the authors it seeks to describe.

Were we to take the legal concept of originality seriously, we would need to ensure that authors'
copyrights encompassed only those aspects of their works that were actually original. We could not draw
the boundaries of an author's property in the contents of her work until we had dissected her authorship
process to pare the preexisting elements from her astigmatic recasting of them. I argued earlier that such
a dissection would be impossible in practical terms.268 If it were possible, I am confident that authors would
not welcome it.269

Absent such dissection, however, we risk granting broad and overlapping property rights in the subject
matter of copyright.270 If each author's claim to own everything embodied in her work were enforceable
in court, almost every work could be enjoined by the owner of the copyright in another.271 That prospect
is at least as repellent as the spectre of merciless dissection raised above.

To avoid choosing between the two, we rely on the public domain. Because we have a public domain,
we can permit authors to avoid the harsh light of a genuine search for provenance, and thus maintain the
illusion that their works are indeed their own creations. We can tolerate the grant of overbroad and
overlapping deeds through the expedient assumption that each author took her raw material from the
commons, rather than from the property named in prior deeds.

V. EXPLORING THE COMMONS

The historical development of the public domain began as a straightforward problem in statutory
construction and proceeded through ad hoc articulation in series of cases decided under successive
statutes.272 Traditional explanations of the public domain have failed to justify the cases on principled
grounds. When the public domain is viewed as a commons that rescues us from our choice to grant fuzzy
and overlapping property rights in unascertainable material, however, some of the apparent contradictions
in lines of cases become more transparent.

One traditional justification for the public domain is that the public domain is the public's price for the grant
of a copyright. The public is said to grant the copyright as an incentive to persuade the author to create and

267
See, e.g., Goldstein, supra note 7, at 218; Jaszi, When Works Collide: Derivative Motion Pictures, Underlying
Rights, and the Public Interest, 28 UCLA L.REV. 715, 729-33 (1981); Landes & Posner, supra note 7, at 332.
268
See supra notes 228-29, 255-67, and accompanying texts.
269
See infra notes 293-94 and accompanying text.
270
See, e.g., Reichman, supra note 71, at 683-87.
271
Accord Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST.L.J. 517, 556 & n. 232
(1990). Landes and Posner pose this problem differently, as imposing licensing and other transaction costs on authors seeking to
obtain permission to copy prior works. See Landes & Posner, supra note 7, at 332. Their formulation requires that such authors
be aware, or at least capable of discovering, from whom they are copying. I argue that in most cases they are not.
272
See supra notes 75-186 and accompanying text.
publish original works that will enrich the public domain.273 Thus, copyright endures only for limited times.
Some aspects of copyrighted works are thought to be so important to the public that society demands
unrestricted access to them immediately, without waiting for the copyright to expire. Ideas and works of
the federal government are said to possess these qualities.274
This reasoning explains the systems cases well. Systems are important--so important that the public is
reluctant to grant a fuzzy property right in systems to anyone claiming an interest. Instead, we have the
patent statute under which a claimant can obtain a firmer property right, but only after making a significantly
more specific showing of the basis for her claim.275 In the absence of such a showing, the public claims
even original systems as its own.

Neologisms furnish another straightforward example. Coined words are not copyrightable276 despite the
fact that some of them are demonstrably original. 277 I am unaware of any who would dispute that
neologisms belong in the public domain, but one could not plausibly argue that they originated there.
Granting copyright protection to an invented word would seem at first blush to be utterly harmless, for it
would remove nothing from the commons that was there before the word's author created it. Individual
words, however, tend to seep into the language. We hear them, absorb them, and use them; we think in
them whether they are old, familiar words or new, familiar words. Language is sufficiently crucial that we
insist on unrestricted access to words, even new words. We do have a trademark system for establishing
property rights in words, but again we require a stronger and more specific showing to support the
claimant's title.278 The trademark statute permits a word to be withdrawn from the public domain only if,
and only to the extent that, it has acquired a proprietary meaning.

The current dispute over copyright protection for computer software user interfaces279 raises analogous
issues. User interfaces are themselves languages--the languages people use to operate their computers.280
Because user interfaces have the attributes of languages, users learn them as if they were languages.281 To
the extent that individual commands or keystrokes282 in popular user interfaces are understood by users

273
See, e.g., Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984); Patterson & Joyce, supra note 71, at
790-91; sources cited supra note 13.
274
See, e.g., 1 P. GOLDSTEIN, supra note 50, §§ 2.3.1.1, 2.5.2; 1 M. NIMMER & D. NIMMER, supra note 2, §
2.03[D]; W. PATRY, supra note 51, at 30-35, 51-55; Denicola, supra note 14, at 523-24.
275
See supra notes 41-43 and accompanying text.
276
See 37 C.F.R. § 202.1(a) (1989).
277
See G. BRANDRETH, THE JOY OF LEX: HOW TO HAVE FUN WITH 860,341,500 WORDS 9 (1980)
(aerosol; automation); W. SAFIRE, ON LANGUAGE 9 (2d ed. 1981) (deplane); id. at 282 (uptight); id. at 289 (pseudoevent).
Consider also "'palimony,"' "yuppie,"' "significant other,"' and "Ms."DD'
278
See supra notes 44-46 and accompanying text.
279
See, e.g., Telemarketing Resources v. Symantec Corp., 12 U.S.P.Q.2d (BNA) 1991 (N.D.Cal.1989). See generally
Menell, supra note 181; Samuelson & Glushko, supra note 180.
280
Indeed, in common parlance, user interfaces are the means by which users "'communicate with"' their computers.
281
See, e.g., Seymour, Who Owns the Standards?, PC MAG., May 26, 1987, at 174.
282
E.g., pressing the function key "F7"' to exit the program.
as individualwords, they must belong to the public domain simply because they are elements of language.283
The public's demand for unrestricted use of language will not tolerate private ownership of words or
word-analogues under the rubric of copyright.

This quid pro quo justification, however, cannot explain the cases denying protection to scenes a faire.284
Moreover, it cannot account for the line of cases granting protection to facts in directories and catalogs
while denying protection to facts in other sorts of works. Indeed, under traditional justifications for the
public domain, the directory case law makes no sense. If we decline to protect information because the law
assimilates facts to ideas and systems,285 then the cases should rigorously dissect the information in
directories and catalogs from the form in which the information is expressed. If protection is denied to
information because facts are not original, 286 then works conveying information in unoriginal form
(alphabetical, for example) should receive little or no protection under the copyright law.

Had the cases denying copyright protection for facts begun from a firm consensus that facts belonged to
the public domain, they would likely have developed along precisely those lines. Most of the cases defining
the public domain, however, involved courts carving out exceptions to authors' claimed property rights in
order to alleviate pressure exerted by the breadth of plaintiffs' claims. That pressure, which strained the
integrity of copyright law, was imposed not by plaintiffs' greed but by the inherent limits of the concept of
originality. To illustrate how originality generates this pressure and how the courts' resort to the public
domain helps to dissipate it, I propose to look again at the public domain case law from the viewpoints of
potential defendants, potential plaintiffs, and the system of copyright law as a whole.

A. Protecting Potential Defendants

The dangers of overbroad and overlapping property rights in works of authorship seem most obvious
when considering the plight of inadvertent infringers. Ideas, systems, themes, and plots are not easily traced.
It is difficult to ascertain the source of an idea and impossible to prove its provenance in any meaningful
sense. A court cannot unzip an author's head in order to trace the genealogy of her motifs; indeed, the
author herself usually cannot pin down the root of her inspiration. Giving an author a copyright in something
that is a basic building block of her art thus risks denying that basic building block to all other authors who
come into even fleeting contact with the first author's work. It is our inability to trace or verify the lineage
of ideas that makes it essential that they be preserved in the public domain.

Facts seem more verifiable. To the extent that they are drawn from preexisting sources, the sources may
be checked. The question "Where is that fact from?" is a question that often seems to have an answer.

283
See Menell, supra note 181, at 1098-1102.
284
See supra notes 128-33, 213-18, and accompanying texts.
285
See, e.g., 1 P. GOLDSTEIN, supra note 50, § 2.14; Denicola, supra note 14, at 525-26.
286
See, e.g., 1 M. NIMMER & D. NIMMER, supra note 2, § 2.11[A]; Denicola, supra note 14, at 525; Gorman,
supra note 13, at 571 n. 29.
Nonetheless, protecting facts can pose a separate problem. We often learn the facts we encounter and
incorporate them into our views of the world in which we live. Once they have taken residence, they will
color the things we believe that we see, and we are helpless to pry them out again in order to sit down and
create works of authorship. A rule requiring authors effectively to forget the facts learned from other
authors would be destructive and impossible to enforce.

Courts nonetheless imposed just such a rule in the directory cases. The current prevailing rule requires the
author of a second directory first to go out and duplicate the original research and only then to consult the
preexisting directory for verification.287 This is a wasteful rule, certainly, but perhaps it is a comprehensible
one. Courts may have responded to an intuitive sense that it would be unlikely for an author to make
inadvertent use of directory listings because we do not normally learn the contents of directories. When
courts in the directory cases, then, protected the facts in plaintiffs' directories, they did not prohibit
defendants from consulting the same preexisting sources that plaintiffs had consulted.288 As a result,
plaintiff's copyright did not remove facts from the public domain; it simply prohibited a single, albeit more
efficient, route to unearthing them. 289

From the viewpoint of analytical order, it seems indefensible to protect the facts in directories with a
zealousness unparalleled in other cases of factual works. If, however, one is in the business of defining
exceptions in cases in which asserted property rights would cripple the enterprise of authorship, the
distinctions that courts drew have some intuitive appeal. If the chief threat of defining the borders of
property in works of authorship is that it will penalize defendants for inadvertent or inevitable use of
common building blocks, then the directory cases seem to pose no danger.

Thus, the fact cases can be reconciled if we understand the principle of seepage: Some aspects of works
of authorship are easily absorbed, and once we have absorbed them, we are likely to make them our own
and lose sight of their origins. Ideas, information, short phrases, simple plots, themes, stock scenes, and
utilitarian solutions to concrete problems all share this characteristic. It makes them difficult to trace. That
difficulty should make us leery of granting exclusive property rights in such things without requiring the
claimant to offer significant proof in support of her claim of ownership. We have, however, elected to adopt
a system that confers property rights without requiring any concrete proof of ownership, because we value
the property rights and recognize that in many cases such proof would be impossible to obtain. To keep

287
See, e.g., Illinois Bell Tel. Co. v. Haines & Co. Inc., 905 F.2d 1081 (7th Cir.1990); United Tel. Co. v. Johnson
Publishing Co., 671 F.Supp. 1514 (W.D.Mo.1987), aff'd, 855 F.2d 604 (8th Cir.1988); National Business Lists, Inc. v. Dun &
Bradstreet, Inc., 552 F.Supp. 89 (N.D.Ill.1982); Northwestern Bell Tel. Co. v. Bedco of Minn., Inc., 501 F.Supp. 299
(D.Minn.1980); cf. Rockford Map Publishers, Inc. v. Directory Serv. Co., 768 F.2d 145 (7th Cir.1985) (maps), cert. denied, 474
U.S. 1061 (1986).

288
Plaintiffs recovered for copyright infringement only when they succeeded in proving, typically by showing
common errors, that defendants had copied their directories from plaintiffs rather than independently collecting their facts. See,
e.g., List Publishing Co. v. Keller, 30 F. 772 (C.C.S.D.N.Y.1887). See generally Lurvey, supra note 137.
289
See Denicola, supra note 14, at 541. The distinction is, of course, a largely illusory one in the real world. Requiring
a second author to obtain facts from independent sources before consulting plaintiff's work is functionally indistinguishable from
granting copyright protection to the facts in plaintiff's work.
such a system from defeating its ends, we leave the elements subject to such absorption free from private
claims, even in cases in which we could determine their initial source. But we do not concern ourselves with
this problem in situations in which the works in question seem unlikely to be absorbed. In such cases, there
seems to be no imperative reason for separating protectible from unprotectible elements.

Despite its intuitive appeal, however, the picture of the public domain that emerges from the distinctions
among the fact cases is too limited. It emphasizes defendants' motives, supporting a vision of the public
domain as a commons that exists chiefly for the benefit of the defendant copying unintentionally and in good
faith. The danger of such a view is that it tempts us to abandon the commons whenever proof of copying
seems less circumstantial. But here it is useful to recall that many of the cases defining the borders of the
public domain involve no such ambiguous situation.

Indeed, if we look only at the interest of potential defendants in avoiding liability for copying that they
would be powerless to prevent, then the film cases make no sense at all. In some of the film cases,
defendants had provisionally admitted copying for the purpose of a motion to dismiss. 290 In others, the
evidence of intentional copying was compelling.291 Yet courts carved out a commons that immediately
benefited parties who had apparently made deliberate use of others' works. The solution to this apparent
paradox is the realization that the public domain is not merely a haven for well-meaning potential
defendants. It benefits potential plaintiffs as well.

B. Protecting Potential Plaintiffs

The commons provides significant advantages for parties plaintiff. Because we can rely on the commons,
we do not require plaintiffs to prove the originality of their works.292 We could take another approach, of
course: We could insist that plaintiffs bear the burden of demonstrating their works' originality before
enforcing their claims. As we currently define originality, however, most plaintiffs would be unable to muster
the evidence required, and few would recover.

The principle of seepage is not limited to such material as will inevitably seep from the works of potential
plaintiffs into the works of potential defendants. It is equally likely that such material seeped into the works
of the potential plaintiffs themselves.293 To the extent that such elements seeped into plaintiffs' works from
other prior works, any property rights in these elements will overlap the claims of others significantly. To
resolve the overlap, it would be necessary to require plaintiffs to prove the bases for their claims. If we

290
See, e.g., Caruthers v. R.K.O. Radio Pictures, Inc., 20 F.Supp. 906, 907 (S.D.N.Y.1937); Shipman v. R.K.O. Radio
Pictures, Inc., 20 F.Supp. 249 (S.D.N.Y.1937), aff'd, 100 F.2d 533 (2d Cir.1938).
291
See, e.g., Ornstein v. Paramount Prods., Inc., 9 F.Supp. 896, 901 (S.D.N.Y.1935); Witwer v. Harold Lloyd Corp.,
46 F.2d 792, 794 (S.D.Cal.1930), rev'd, 65 F.2d 1 (9th Cir.), cert. dismissed, 296 U.S. 669 (1933); Nichols v. Universal Pictures
Corp., 34 F.2d 145, 150 (S.D.N.Y.1929), aff'd, 45 F.2d 119 (2d Cir.), cert. denied, 282 U.S. 902 (1930).
292
See supra notes 267-71 and accompanying text.
293
Others have argued that facts, ideas, or scenes a faire are by their nature unoriginal. See sources cited supra notes
192-94. My point is a little different: It is not that that these elements are necessarily unoriginal, but rather that they may be.
permit them to do so, we invite the introduction of evidence purporting to prove--or disprove--actual
originality. Even raising the possibility that such elements could be protected if plaintiff could only prove
their provenance would effectively impose that test on all such cases. A plaintiff required to prove originality
of all aspects of her work in order to recover for copyright infringement would be well advised to decline
to bring suit.

The absence of a public domain would make copyright meaningless for most plaintiffs if we were to
require them to bear the burden of proof on the originality of their works, at least as long as proving
originality remained impossible as a practical matter. A second implication is more subtle: Even if proving
originality were not impossible, it would be exceedingly unpleasant. It would take the magic away. Authors
could no longer safely give free rein to their subconscious minds, and their muses would need to be
available for deposition. Many would discover that creations they believed were their own were, at least
in the eyes of the law, mere copies of the works of others.

Such a system would probably not endure for long. Forced to face the flaws of a system based on actual
proof of originality, we would undoubtedly abandon the concept. But, to the extent that the idea of
originality embodies things that we would like to believe, the presence of the public domain has made it
possible for us to do so.

The essence of my argument is this: Originality is a conceit, but we like it. To the extent that we are
tempted to forget that originality is a conceit, it can be a dangerous principle on which to base a system of
property. Most authors would agree in the abstract that the raw material that authors use in their work must
be left free for all authors to use. Individual authors can nonetheless dispute the applicability of this abstract
principle to a situation in which they see something that they think of as their own in a later author's work.
We could force each copyright owner to demonstrate her right to claim such aspects of her work by
requiring her to prove their originality, but we would have to accept that she would often be unable to do
so in any meaningful way. We could instead tolerate a world in which all authors must seek permission from
each of their predecessors, but few new works of authorship would be likely to appear in such a system.294
Instead, we rely on a commons, and we draw the boundaries of that commons by recalling the fact that the
concept of originality we purport to rely on is a mere apparition that we cannot afford to test.

C. Rescuing the System

There is a third set of interests threatened by the phantasm of originality: the copyright system's interests
in preserving its own integrity. The problem of overlapping claims, alluded to above, invites gridlock in the
courts as parties request judicial resolution of insoluble disputes. This set of interests, I think, best explains
the recent impulses of some courts to expand the borders of the commons.295 [FN295] To illustrate this
problem, I offer a final parable.

294
See, e.g., Yen, supra note 271, at 556.
295
See cases cited supra note 184.
 Imagine the familiar plot of a novel for children. You remember this book: Our heroine (hero) is an
unpopular, bookish sort, small for her age and, typically, bullied by her more popular classmates. One day
in the public library she finds a book she has never seen before: worn, plump, and red. (For some reason,
the book always seems to be red.) It is a magic book. Indeed, it seems to be written especially for our
heroine (hero). She reads the book, certain at first that it is some sort of joke, but then discovers that the
magic in the book really works. It takes her to strange alternate universes, where she meets alien creatures
and ultimately performs brave deeds that save at least a small part of the world.296 The class bullies no
longer trouble her.

Imagine as well a contemporary author of books for children who has just finished a manuscript along
these lines. Her lawyer remarks in passing that she recalls reading something of this ilk to her son. (The son
was entranced.) Indeed, now that she thinks of it, she has a vague recollection of enjoying a similar book
borrowed from the library some thirty years ago. Our author becomes concerned.

A dedicated paralegal spends two days in the municipal public library and turns up twelve versions of this
plot. In each, the book is red. The author, who cannot recall having read any of them, but is unable to rule
out the possibility, asks her lawyer to explore the question whether any of these twelve authors would
object to publication of her book. When contacted, the first of them assures the lawyer that he has no
objection, as long as the novel's hero is a young fellow, with a large dog, getting over his parent's recent
divorce. The second author is similarly obliging, on the condition that the book's central character be a
young Hispanic woman with a part-time job in a diner. The third demands a Native American, the fourth
a Jew, the fifth a WASP.

At this point, our author and her lawyer would like to file an action to determine with whose conditions
she must comply. Imagine now that they file an interpleader suit, depositing the plot of the novel with the
court and joining the dozen prior authors as defendants. Each of the dozen files a counterclaim to quiet title
in the plot; five other authors of similar stories seek to intervene.297

The court before which this suit is brought faces a quandary. There is no rule of decision that can resolve
the issues in dispute. Theoretically, each of the authors before the court may be entitled to claim ownership
of the plot on the ground that she originated it; it is, after all, the sort of plot that any bookish child with a
taste for fantasy might have thought up on her own. On the other hand, any or all of the authors may have
consciously or subconsciously copied the plot from some prior source. The question cannot be determined

296
See, e.g., D. DUANE, SO YOU WANT TO BE A WIZARD (1983); E. EAGER, SEVEN-DAY MAGIC (1962).
But cf. M. ENDE, THE NEVERENDING STORY (1983) (book is bound in copper silk); W. ROBERTS, THE MAGIC BOOK
(1986) (book is blue).

297
For other variations on the magic book story with books in different hues, see, for example, L.F. BAUM,
GLINDA OF OZ (1920); R. GRAVES, THE BIG GREEN BOOK (1962); E. NESBIT, The Book of Beasts, in THE LAST OF
THE DRAGONS AND SOME OTHERS (1975); P. O'SHEA, THE HOUNDS OF THE MORRIGAN (1985). See also D.
DUANE, HIGH WIZARDRY (1990) (text of magic book shows up on heroine's portable computer).
directly, and the presumptions and procedural devices that usually make this determination unnecessary are
of no assistance here, because the court has no basis on which to apportion the benefits and burdens of the
procedural devices among the parties before it.

When we are confronted with an insoluble problem in overlapping deeds, pragmatic concerns may
outweigh doctrinal ones. It ceases to matter why this plot is claimed by so many authors; the important thing
is that it is. The court could dismiss the case on procedural grounds--the plot of a novel is after all an
unfamiliar res. This rescues the court from the spectre of having to make any decision, but it leaves the
children's book industry in disarray. Next week, some composers are sure to show up with a dispute over
chord progressions. The court could instead award exclusive rights in the plot to one particular
author--perhaps the one who bakes the best cherry pie. This solution would seriously inconvenience the
other authors, who would presumably incur liability for their use of the plot unless they could disprove
access to that author's book. The court could avoid that particular difficulty by awarding the plot to all of
the authors before it. This answer would, of course, hinder the authors of the future, but perhaps the world
has enough literature about magic books already. Finally, the court could decide that without some principle
on which to base a decision, the plot must belong to the commons. This decision relieves the parties of
having to produce inconclusive evidence of originality, relieves the court of having to reach a decision with
no basis for doing so, and relieves the law of having a predicament posed by overlapping deeds.

My parable is about plots, of course, but it is also a metaphor for scenes a faire. Scenes a faire are
common; they are the property shared among the overlapping deeds. Some scenes a faire are common
because they are trite; some become trite because they are common; for others it is hard to figure out why
they appear so frequently. 298 There is no particular reason why a magic book should be red; if the book
is always red or even often red, however, that is a scene a faire. When we grant deeds without doing title
searches, we risk significant overlap. We can often fashion rules to permit us to decide between two or
three competing claimants, if not necessarily on strictly doctrinal grounds.299 At some point, however, the
frequency of overlapping claims to something in
particular will itself become the problem. Assigning that something to the commons is the copyright law's
most practical defense.

This leads me to an observation about some recent cases. Some courts have been increasing their resort
to the scenes a faire doctrine during the last decade.300 These courts have been responding to a real and
troubling trend. If access to a prior work is the basis for presuming that similarities represent actionable

298
Thus, four theatrical motion pictures based on nearly identical age- switching premises were released in the U.S.
during the 1987-88 season. Compare Big (Fox 1988) with 18 Again (New World 1988), Vice Versa (Columbia 1988), and Like
Father, Like Son (TriStar 1987). Producers and critics attributed the similarities among the films to "something in the air."' See,
e.g., Maslin, Today's Alter Has a Smaller Ego, N.Y. Times, June 12, 1988, § 2 (Arts & Leisure), at 29, col. 1; Sterritt, A Plot
Gimmick That May be Ready to Retire, Christian Sci. Monitor, Apr. 29, 1988, at 33, col. 1; Kempley, The Vices of "'Versa,"'
Wash. Post, Mar. 11, 1988, at D7, col. 1.
299
See supra notes 246-52 and accompanying text.
300
See supra note 184 and accompanying text.
copying,301 then one would expect a marked increase in everybody's access to everything to carry with it
increasing inferences of infringement. The copyright law has defined access as "reasonable opportunity to
view"' since before the development of modern methods of mass dissemination.302 Disproving access is,
in most cases, no longer possible.303 It is not surprising, then, that the pressure of overlapping claims to
common material has increased and that the courts have felt it necessary to rely on the public domain in
ever more sorts of cases. We may be approaching an era in which familiar solutions to the chimera of
originality become insufficient; there may soon come a day when we have to give the notion up.

CONCLUSION

Copyright law purports to define the nature and scope of the property rights that it confers by relying on
the concept of originality. In fact, originality is an apparition; it does not, and cannot, provide a basis for
deciding copyright cases. The vision of authorship on which it is based-- portraying authorship as ineffable
creation from nothing--is both flawed and misleading, disserving the authors it seeks to extol. If we took
that vision seriously, we could not grant authors copyright rights without first dissecting their creative
process to pare elements adapted from the works of others from the later authors' recasting of them. That
dissection would be both impossible and unwelcome. If we eschewed that vision but nonetheless adhered
unswervingly to the concept of originality, we would oblige each author to solicit the permission of her
predecessors. In such a world, most works of authorship would find themselves enjoined by the owners
of other copyrights.

The public domain rescues us from this dilemma. It permits us to continue to exalt originality without
acknowledging that our claims to take originality seriously are mostly pretense. It furnishes a crucial device
to an otherwise unworkable system by reserving the raw material of authorship to the commons, thus
leaving that raw material available for other authors to use. The public domain thus permits the law of
copyright to avoid a confrontation with the poverty of some of the assumptions on which it is based.

301
See supra notes 229-31 and accompanying text.
302
See supra note 229.
303
See, e.g., T. MALLON, supra note 260, at 221.