17.3 COPYRIGHT—SUBJECT MATTER—GENERALLY

(17 U.S.C. § 102)

The work[s] [identify the works at issue] involved in this trial are known as:

[1.] [literary works [in which words, numbers, or other verbal or numerical symbols are expressed];]

[2.] [musical works, including any accompanying words;]

[3.] [dramatic works, including any accompanying music;]

[4.] [pantomimes;]

[5.] [choreographic works;]

[6.] [pictorial works] [graphic works] [sculptural works][;] [, such as two- and three-
dimensional works of fine, graphic or applied art, photographs, prints, and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans;]

[7.] [motion pictures] [and other audiovisual works] [in which a series of related images convey an impression of motion when shown in succession];]

[8.] [sound recordings][;] [, which are works that result from fixation of a series of musical, spoken, or other sounds;]

[9.] [architectural works][;] [, which are building designs as embodied in buildings, architectural plans, drawings, or other modes of expression;]

[10.] [computer programs][, that is, sets of statements or instructions to be used directly or indirectly in a computer to bring about a certain result].]

You are instructed that a copyright may be obtained in [identify the work[s] at issue].

[[This] [These] work[s] can be protected by copyright law. Only that part of the work[s] consisting of original works of authorship [fixed] [produced] in any tangible [medium] [form] of expression from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, is protected by the Copyright Act.]

[Copyright protection for an original work of authorship does not extend to any [idea] [procedure] [process] [system] [method of operation] [concept] [principle] [discovery], regardless of the form in which it is described, explained, illustrated, or embodied.]

Comment

Generally, whether a subject matter is copyrightable is a question of law to be determined by the court. This instruction is designed to inform the jury that the court has determined the subject matter to be appropriately copyrightable.

The court may wish to supplement this instruction by providing further instructions addressing these additional terms. For example, the term "literary works" "does not connote any criterion of literary merit or qualitative value: it includes catalogs, directories and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves." H.R. Rep. No. 94-1476, at 54 (1976).

The Ninth Circuit has recognized that characters in comic books, television or motion pictures can be afforded copyright protection when they satisfy a three-part test. DC Comics v. Towle, 802 F.3d 1012, 1021 (9th Cir. 2015) (Batmobile). The character (1) must generally have physical as well as conceptual qualities; (2) must be sufficiently delineated to be recognizable as the same character whenever it appears by displaying consistent, identifiable character traits and attributes, although it need not have a consistent appearance; and (3) must be especially distinctive and contain some unique elements of expression. Id.

For additional definitions of terms used in this instruction, see 17 U.S.C. § 101 (defining numerous terms used here).

The United States Supreme Court has ruled that no copyright protection is available for material authored by a judge or a legislative body acting in an official capacity. See Georgia v. Public Resources, ___U.S.___, 140 S. Ct. 1498 (2020).

Revised May 2020