ABSTRACT
This article is about the importance of the copyright law jurisprudence from the US Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive, and this article discusses this court’s important decisions in the following areas: the originality standard; the application of the US Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, fair use.
The Eleventh Circuit’s rulings show a consistently rigorous application of the originality standard and the principles announced in Feist by the Supreme Court along with section 102(b) of the Copyright Act, scenes a faire, and the merger doctrine in order to separate the protected expression in a work of authorship from its unprotected elements. The opinions also evidence a generous interpretation and application of fair use in the context of tensions between copyright and the First Amendment, parody, and the use of protected works in education. The Eleventh Circuit’s copyright jurisprudence adheres consistently to several fundamental principles: that everyone is free to use whatever is in the public domain; that copyright protection extends only to creative expression and not to ideas, facts, scenes a faire, and those elements of a work that are standard, routine, commonplace, or dictated by efficiency; that reward to the author is a secondary consideration because the primary beneficiary of copyright is the public; and, that use of a work and use of a copyright are distinct in that one may use many elements from a work without infringing the copyright. The Eleventh Circuit Court of Appeals copyright rulings have protected the public domain, and everyone’s right to use the unprotected elements in a copyrighted work of authorship.
David E Shipley, Protecting the Public Domain and the Right to Use Copyrighted Works: Four Decades of the Eleventh Circuit’s Copyright Law Jurisprudence, 29 Journal of Intellectual Property Law 67 (2022).
First posted 2022-01-28 16:00:38
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