Prof. Randal C. Picker, University of Chicago Law School
May 22, 2012

One of the nice things about teaching is that you are constantly forced to confront the fundamentals of whatever subject you have in front of you.  For me, when I teach copyright, I start the class with a blank piece of paper.  Really blank.  Not college-ruled lined paper – that isn’t blank after all, it just doesn’t have writing on it.  A blank piece of paper of the sort that you stick into a photocopier or a computer printer.  I then discuss my rights to the paper – assume that I hold fee-simple ownership over the paper – and the rights of the class to the paper, none at all.

I then pull out a pen and compose a poem on the paper.  Try this one, call it an “Ode to Vanilla Ice Cream”:

Skim milk, sugar, a pinch of salt
A little heat, a little stirring
More milk, cornstarch – yes, isn’t that a surprise
Vanilla bean if you must
(but for the rest of us vanilla extract)
Bubble, bubble and then be cool
Whir, whir, whir
I scream, you scream, we all scream for …

We then talk about the poem a little.  The basics of U.S. copyright are an original work of authorship fixed in a tangible medium of expression and if you satisfy that, you get a full copyright in the work for life of the author plus 70 years.  My poems always meet that test.  Copyright, unlike patent law, doesn’t have a quality filter.  Even bad poems enjoy full copyright so long as they have the requisite originality, meaning some creative spark that originates from me.  My poem will work: It is fixed, meaning here written on a piece of paper and I created it.  Five minutes of work in class and I have something that I control for a very long time (we will ignore the much more subtle question whether I actually hold the copyright or whether it belongs to the University of Chicago, but the University’s position is that it belongs to me).

I then take out a second blank piece of paper and my pen and compose a second work.  We will call it “Grocery List”:

Skim milk
Vanilla Extract (Vanilla bean if they have it)

Also fixed on a tangible medium of expression and authored by me.  Does it qualify for a copyright under U.S. law?  I would hope not, though I am less sure that I know the answer to this one.  I think that we should say that there is nothing expressive in the grocery list.  It is composed of nothing but facts or ideas and there is nothing incrementally expressive in my grocery list beyond those functional fundamentals.  For copyright purposes, authoring shouldn’t mean just putting pen to paper or fingers to keyboard but should mean that there is an actual act of expression.  I don’t think that I have that in the grocery list.

You might ask what is at stake.  We should first be clear on what isn’t at stake.  So even if I held a copyright in my grocery list, that wouldn’t prevent you from writing down exactly the same grocery list, assuming that you came up with your list independently.  And even if you saw my list, you would still be entitled to access the underlying ideas in my list through my grocery list and you could presumably write down those ideas.  The more realistic context in which this might matter was if I turned out to be famous and you wanted to publish a book of stray papers that you found in my house.  Say things like grocery lists or perhaps more interesting, personal letters, though those are likely to contain a good deal more expression than my grocery list.

Take the hypo one more step.  Suppose that I put together a book of collected poems by me about food.  Call it “100 Odes to Food.”  The first 99 poems look very much like my Ode to Vanilla Ice Cream, all bad poetry but fully protected by copyright law.  The last included poem is titled “Grocery List” and of course is the second work above.  Critics read the poems and savage the odes but find “Grocery List” to be a model of spareness and simplicity and a commentary about a return to a simpler time.  Does that make “Grocery List” expressive?  Is expressiveness an act of the author, something about the intent of the author – perhaps determined at the point not of writing but of inclusion in the poetry volume – or does expressiveness arise from the reader?

(And if you are looking for an actual recipe for vanilla ice cream, you should consult Mark Bittman’s, the inspiration for this post.)