Malkan — Volume 57, Issue 2

Copyright law struggles with whether protection extends to works of authorship consisting of rules for producing another work, such as numbering systems, games, recipes, and computer programs. Malkan traces this question through landmark cases including Southco, Inc. v. Kanebridge Corp., examining whether serial numbers generated by proprietary numbering rules qualify for copyright protection. The article explores fundamental tensions between function and expression, analyzing Baker v. Selden and subsequent copyright doctrine. Malkan asks whether rules themselves can be expressive—whether the system that encodes product information possesses the creativity necessary for authorship. The author draws on literary and aesthetic theory to argue that authorship requires both freely willed and formally realized expression. Malkan contends that under copyright's formal concept of authorship, authors as agents do not qualify for protection unless their expression is both freely willed and formally realized. The article demonstrates how copyright doctrine must grapple with works whose rule-based nature challenges traditional understandings of originality and creative expression.

Topics: Intellectual Property · Legal Theory

Keywords: copyright · authorship · Southco · compilation · originality · rule-based expression · Baker v. Selden