The Evolution of Copyright Law

Copyright has evolved since the first federal copyright law that protected just books, charts, and maps. Over time, the law has expanded to include broad categories encompassing a wide range of works, such as literary works, music and sound recordings, dramatic works, choreography and pantomimes, visual art works, audiovisual works, and architectural works.

Owners of these works generally have exclusive rights to reproduce, distribute, create derivative works, and publicly perform and display their works. This helps owners protect and make a living from their works.

But copyright is for the benefit of everyone, and so the law also considers the interests of copyright users by providing certain exceptions and limitations to the owner’s exclusive rights. Fair use, the first sale doctrine, exceptions for libraries and other specific types of uses, and statutory licensing, among others, allow works to be used in ways that achieve the overall goals of the copyright system.

Rights, exceptions, and limitations have also evolved, shaped by Congress and courts, often on the advice of the Copyright Office and while balancing the interests of creators and users.

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Photograph of Oscar Wilde by Napoleon Sarony
Napoleon Sarony. Oscar Wilde, 1882. Photographic print on card mount. Prints and Photographs Division, Library of Congress

Supreme Court Holds Photographs Protected by Copyright

As noted, copyright protects a wide variety of works, but this wasn’t always the case. As new works developed, both Congress and the courts grappled with how to apply the law. One example of this is photography.

Napoleon Sarony, a photographer of theatrical stars, took this photograph of Irish author Oscar Wilde in 1882. When Burrow-Giles Lithographic Co. made 85,000 unauthorized prints of the image, Sarony sued for infringement.

Despite an 1865 amendment to copyright law extending protection to photographs, the company argued that photographs were merely mechanical products and not original works of authorship. The Supreme Court disagreed, finding that photographs are “writings” as the term is used in the Constitution’s copyright clause and that Sarony’s photograph embodied creative expression.

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Related Exhibit Artifacts

  • Napoleon Sarony. Application for registration of copyright, 1882. U.S. Copyright Office, Library of Congress

Varsity Brands, Inc. Cheerleading uniform.
Varsity Brands, Inc. Cheerleading uniform. 2005. Copyright deposit, U.S. Copyright Office, Library of Congress

Supreme Court Holds Photographs Protected by Copyright

Useful articles are objects that have an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples include mugs, t-shirts, and furniture. Copyright law doesn’t protect useful articles as such, but it does cover “separable” copyrightable authorship. One question that has persisted through the years is what it means to be “separable.”

The Supreme Court has addressed this issue on more than one occasion. These drawings for a cheerleading uniform were center stage at the Supreme Court case, Star Athletica, LLC v. Varsity Brands, Inc. The case answered the question of when the artistic feature of a useful article can be eligible for copyright protection.

The court held that copyright protects artistic features that can be identified and can exist separately from a useful article. The court also articulated a test for determining when a pictorial, graphic, or sculptural feature is separable from the useful article, noting that the artistic design is eligible for protection if (1) it can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) it would qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in another medium, if it were imagined separately from the useful article. The Copyright Office, in examining works, uses this test to determine if the design of a useful article may be eligible for copyright registration.

The court’s decision in Star Athletica highlights just one of the many ways federal courts have shaped copyright law.

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