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17.2 Copyright—Subject Matter—Generally (17 U.S.C. § 102)

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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 or indicia are expressed in such material objects like books, periodicals, manuscripts, phonorecords, films, tapes, disks or cards];]

[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-dimensional and three-dimensional works of fine, graphic and 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 which, when shown in succession, convey an impression of motion];]

[8.] [sound recordings][;] [, which are works that result from fixation of a series of musical, spoken, or other sounds, be it on disks, tapes or other phonorecords;]

[9.] [architectural works][;] [, which are plans for the design of a building;]

[10.] [mask works fixed in semiconductor chip products;]

[11.] [computer programs][, that is, a literary work composed of a set 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].

[These work[s] can be protected by the copyright law. Only that part of the work[s] comprised 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.]


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. But see Aidon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.1984) (trial court placed issue of copyrightability of statuette before the jury).

See 17 U.S.C. § 101 (defines terms "architectural work," "audiovisual work," "computer program," "digital transmission," "literary works," "motion pictures," "phonorecords," "pictorial, graphic and sculptural works" and "work of visual art." See also 17 U.S.C. § 901 et seq. (mask work and semi-conductor chip protection). 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).