Previously Published on SSRN.


This article is about the importance of the copyright law jurisprudence from the U.S. 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. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. 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 rigorous application of the originality standard, the principles announced by the Supreme Court in Feist, section 102(b) of the Copyright Act, scenes a faire, and the merger doctrine. The court’s consistent application of these doctrines and principles enables it to separate the protected expression in a work of authorship from that work’s unprotected elements. The opinions also evidence a generous interpretation and application of fair use where there are tensions between copyright and the First Amendment, in cases involving parody, and when protected works are reproduced for education. The Eleventh Circuit’s copyright jurisprudence adheres 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.