Protecting the Public Domain and the Right to Use Copyrighted Works: Four Decades of the Eleventh Circuit\u27s Copyright Law Jurisprudence

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, and this article discusses this 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 consistently rigorous application of the originality standard and the principles announced in Feist by the Supreme Court along with section 102(b) of the Copyright Act, scenes a faire, and the merger doctrine in order to separate the protected expression in a work of authorship from its unprotected elements. The opinions also evidence a generous interpretation and application of fair use in the context of tensions between copyright and the First Amendment, parody, and the use of protected works in education. The Eleventh Circuit’s copyright jurisprudence adheres consistently 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.[1] [1] This Eleventh Circuit is important for many reasons including South Beach, Peachtree Street, Muscle Shoals, and college football. The populations of Alabama, Florida and Georgia combined are over 36 million; these states are racially, ethnically, and culturally diverse; and, the music, film, entertainment, and technology industries in the region are booming. The musical heritage of Georgia alone includes REM, James Brown, Otis Redding, Little Richard, Ludacris, and the Robert Shaw Chorale. Georgia is Hollywood East where Deliverance, The Blind Side, and Black Panther were filmed along with The Walking Dead, Stranger Things, and Ozark. Cox Media Group, CNN, and TNT are major media companies based in Atlanta along with Tyler Perry’s movie studio. This diverse creative culture gives rise to copyright infringement litigation, and the decisions from the federal district courts in these states are reviewed by the U.S. Court of Appeals for the Eleventh Circui