Copyright Outline Cameron Krieger

professor lichtman fall 1999

I. subject matter 1

A. Idea/Expression - § 102(b) 1

B. Originality - § 102(a) 2

C. Fixation - § 102(a); § 101 2

D. Compilations - § 103 3

E. Derivative Works - § 103 4

F. Computer Programs 4

G. Pictorial, Graphic, Sculptural Works - § 102(a)(5) 4

H. Characters 5

II. ownership, duration, and formalities 6

A. Authorship 6

B. Works for Hire - § 201(b) 6

C. Joint Authors 6

D. Duration and Renewal – § 302, 303; Chart p. 359 7

E. Termination 8

F. Formalities 8

III. Exclusive rights – § 106 10

A. General 10

B. Rights to Make Copies - § 106(1) 10

C. Right to Make Derivative Works – § 106(2)-(3) 11

D. Right to Distribute Copies - § 106(3) 12

E. Music Rights - § 102(a) 13

F. Right to Public Performance – § 106(4) 14

G. Right to Public Display – § 106(5) 15

H. Fair Use – § 107 15

IV. Remedies 16

A. Preliminary and Permanent Injunctions - § 502(a) 16

B. Impound or Destroy - § 503 16

C. Damages - § 504 16

V. state law alternatives – preemption 17

A. Inconsistency in old cases 17

B. § 301 17

VI. policy issues 19

A. Why have CR law 19

B. Problems with CR law 19

I. subject matter

A. Idea/Expression - § 102(b)

1. Copyright just protects expression, not ideas.

a. Patent law protects ideas, so should go there. – Baker v. Selden.

2. Can’t protect idea for system, even if clearly copied – Baker v. Selden.

a. Expression protected (can’t photocopy) but not idea.

3. Merger Doctrine: if expression is so tightly linked to idea, can’t give rights to expression without giving rights to idea so don’t give any rights. – Morrissey v. Proctor & Gamble.

a. If only small number of ways to express something, merger applies.

b. Policy

(1) If finite number of permutations, strategic play would be “seeing in advance” = locking up all possible ways to say something; don’t want to allow that.

(2) Evidentiary problem: will always look like you copied. If no assumption of coping, big evidentiary mess or exclude cases (which merger does).

(3) May not have value anyway – Proctor & Gamble.

4. Lock-in effect – Lotus v. Borland. Debate over existence but intuitively right.

a. May discourage innovation if people won’t use better new system because invested time in learning old. (Also merger issue in Lotus).

b. Users invested time in learning old; may not want to devalue that.

c. If purpose of copying was to avoid lock-in rather than copy system (i.e., second-comer invested time and money in developing own system).

B. Originality - § 102(a)

1. Not duplicated; or,

2. Some element of creativity – very low threshold.

a. Constitutional requirement – Feist.

b. If so banal as to have little value, not sufficiently original – Magic Marketing.

3. To determine, must go beyond “mine’s original”/”no, mine is” to purposes of CR. Three theories of meaning of originality (based on saving money by not using system):

a. If work is trivial and cheap, shouldn’t go through expense of copyrighting because no danger of free-riding.

b. Some works are not valuable because banal and ordinary; don’t want costs of CRing.

(1) Caveats: implies that judges can tell, and why would anyone make something so valueless.

c. Evidentiary: may be difficult to determine copying (e.g., envelopes). Law’s favorite.

(1) Don’t infer when some up with same phone book, but do with two Hamlets.

C. Fixation - § 102(a); § 101

1. Must be fixed in tangible medium of expression.

2. Can be either by author or authorized by author.

3. Fixation simultaneous with transmission of live performance protected–Chris Rock hypo

a. Must have authorization of author.

b. If not being transmitted but being fixed, probably ok (possible loophole in definition)

c. For live music, look at Chapter 11: not so careful; get out of some technicalities.

4. Two possible copyrights by broadcasting, say, a parade:

a. Fixing parade – just has to be embodiment, not creative.

b. Creating broadcast

5. Policy reasons:

a. Evidentiary

b. Clean boundaries

c. Fixed copy for future

D. Compilations - § 103

1. Definition 101: collecting pre-existing material in such a way that it constitutes an original work of authorship.

a. Grouping of things that cannot themselves be protected.

b. Whole better than sum of parts – Roth Greeting Cards.

(1) Compiling must add something to value though – K-Mart (signs).

2. Kinds of compilations

a. Usually see as compilations of facts – Feist.

b. Right is in the arrangement, but not facts – tension here.

3. Four Limitations:

a. Have to compile in such a way that consitutes original work – 101.

(1) Usual low bar (“modicum”) of originality. – CCC (value of used cars).

(2) But, compiling phone book in alpha order not original – Feist.

b. Any part of work where unlawful material used is not protected. – 103(a).

c. CR only goes to material contributed by author. – 103(b).

d. Does not enlarge rights in original material. – 103(b).

4. Policy issues:

a. Issues with line between facts/non-facts:

(1) Evidentiary: harder to prove copying of facts.

(2) Locking up information if give copyright.

(a) CA: if facts, can go get another way.

(b) Lotus: call what want protected expression and not, fact, to prevent lock-in.

(3) Encourage duplicative efforts in getting facts.

(4) Weed out cases where people write down facts and argue copyright.

b. “Sweat of the brow” no longer valid argument. – Feist.

c. Government involvement – Feist. Maybe first-mover should enjoy benefits of being official.

d. Forced licenses – Feist. Can cause windfall for first-mover; if competitive market and new entry, shouldn’t be a problem.

e. Worry about lock-in to standard – Westlaw’s star pagination.

(1) Where originality not issue, bad place for copyright law.

E. Derivative Works - § 103

1. Definition: changing, reforming, or adding to pre-existing work.

a. By example – everything based on something else so fuzzy line.

b. Errors help

(1) Easier to copyright if bad copy because clearly different.

(2) Difficult question if copy public domain work – are all future copies copies of original or copies of your copy?

(a) Evidentiary trouble if recognize CR in derivative.

c. If derivative based on public domain, copyrightable subject to 103 limitations.

2. Limitations:

a. Any part of work where unlawful material used is not protected. – 103(a).

b. CR only goes to material contributed by author. – 103(b).

c. Does not enlarge rights in original material. – 103(b).

d. Evidentiary: if hard to tell, tendency to withhold rights.

3. Issues:

a. Notice: hard to know what’s protected and what’s not.

(1) Public should know what’s available.

(2) CR does not clarify where the lines are; derivatives may receive broader rights.

b. What to do when original is not in public domain, but translation is.

c. Colorized movies: only own what added (color); if strip of color, can you show?

d. Often impossible to separate intertwined CRed/non-CRed components.

F. Computer Programs

1. Are copyrightable even when:

a. People cannot read them.

b. Only operate machines and systems.

c. No communication back to people.

2. Copyright is not about artistry or creativity; it’s a legal rule.

G. Pictorial, Graphic, Sculptural Works - § 102(a)(5)

1. Not a coherent area of copyright law.

2. Main issue: when artistic and functional elements merge, might accidentally give rights to functional (idea).

a. Want to separate form from use/function. - §101

(1) Physically separate artistic element is protected.

(2) No clear answer to conceptual element.

b. Can only copyright form elements.

(1) If cannot separate artistic from functional, no protection – merger doctrine.

(a) May want to look for patent protection.

(2) Can copyright art incorporated into functional design – Mazer v Stein.

(3) If functional item qualifies as art/can be divorced, protected. – Kieselstein.

(4) If form motivated by function, no protection.

(5) May want to look to “average viewer” standard.

(a) Not trying to judge value of art, but if not useful at all, probably art.

H. Characters

1. Tests for whether character is protected element.

a. Learned Hand: focus on evidentiary.

(1) How developed character is.

(a) If sketchy and undetailed or stock character, no rights.

(b) If detailed and distinguishable, rights.

b. Character as story (not really valid test anymore)

(1) If character constitutes story being told, rights. – Maltese Falcon.

(a) May break down as whether character is “derivative” of story.

(2) If character does not, no rights.

c. Sylvester Stallone/Rocky IV treatment issue

(1) Though looks more like derivative work case, argued as character.

(2) If treatment author took characters w/o permission, no rights to work.

(a) By knocking out rights to characters, knock out rights to work.

2. Scenes à faire: if typical backdrop, no rights.

II. ownership, duration, and formalities

A. Authorship

1. Author = who gets first rights by default and determinor of what rights will be.

a. Confusion when unclear who author is – Andrien.

(1) Incentives may not answer.

(2) Natural law may not answer (if all put in effort).

(3) Issue becomes when law makes choice vs. when parties choose.

2. Owner = who has rights at certain time.

3. Why it matters:

a. Law and Econ answer: lower transaction costs with most efficient default rule (only have to contract around sometimes).

b. Practical: parties don’t think of contracting beforehand, or don’t want to negotiate/

c. Legal: duration is tied to author, not owner; author has termination rights.

4. If can’t or don’t contract around, a great deal at stake because rights stay with authorship.

a. If can contract around, not a big deal because rights can be sold.

B. Works for Hire - § 201(b)

1. Employer = author and unless express agreement otherwise owns all rights. Ambiguity:

a. Could mean that employer is always author and there’s no implied license for use without a written contract.

b. Could mean that employer is author unless contracts that status away.

2. Two categories:

a. Prepared by employee in scope of employment.

(1) Unclear if authorship can be moved around; other provisions (duration and termination) need meaning so not generally allowed.

(2) Factors in determining employee status – CCNV (p. 287 – agency law).

b. Commissioned from independent contractor.

(1) Clear that authorship can be moved around.

C. Joint Authors

1. Like tenancy in common, equal ownership of undivided whole; each can use but must share profits.

2. § 101: two authors whose work has merged into inseperable whole = joint authors.

3. Additional two prong test – Thomson v. Larson:

a. Must contribute independently copyrightable material.

b. Both parties must intend to be co-authors.

4. Policy: don’t want to give 50/50 split for casual contribution.

D. Duration and Renewal – § 302, 303; Chart p. 359

1. Constitutional basis = “limited time” – a vague standard.

2. Modern:

a. Life of author + 70 years

(1) Copyright starts when work fixed in tangible medium.

(2) Joint authors: last surviving author=measuring life.

(3) 302(e): presumption of death; excuses infringement if good faith belief.

b. No real author or hard to identify author:

(1) 95 years from publication, or

(2) 120 years from creation, whichever is first – very messy and hard to measure.

c. Works not published or copyrighted pre-1978 – 303

(1) Hanging clock-starting rule.

(2) If had works that were created but not published, would never have protection.

(3) Expectation prior to 1978 could have been that protection would start with publication so could have held off – don’t want author to lose expected rights.

(4) If CR would expire quickly, gives a little more time (till 2002): incentive for publication of another 20 years.

d. Adjustment to works already in system – 304

(1) Second term = 47 rather than 28 years if author still w/i original term.

(2) 1998 amendment: automatic renewal of 67 years to keep up with 302.

3. Historical:

a. Pre-1976: tied to publication rather than fixation.

b. If published between 1906-1922, always in public domain.

c. Between 1978-1998, life of author + 50 years.

d. Key dates: after 1922, look to whether protection made until:

(1) First term: 1962, 1978; or,

(a) If made it, got automatic renewal of 56 years.

(2) Second term: 1992, 1998.

(a) If made 1992, got automatic renewal of 67 years.

(b) If made 1998, got automatic renewal of 95 years (Sonny Bono).

4. Policy issues

a. Why such a long time:

(1) Stewardship theory: reputational/artisitc costs.

(a) CA: low incentives.

(2) Moral rights

(a) CA: Real world costs.

(3) Harmonization with international copyright law.

b. Why have retroactive grants:

(1) Stewardship theory.

(2) International law.

(3) Expectation of fairness from government.

(4) Pure politics (lobbying from Disney for Sonny Bono).

c. Why shift from publication to life:

(1) More certainty, less messy to establish death.

(2) Don’t want competition with own works.

(a) CA: gives longer protection for early works, less for late.

(3) Might not want little pieces falling into public domain at different times.

E. Termination

1. Two kinds of termination rights:

a. Author can come back after 35 years and reclaim copyright.

b. Can add years to copyright: 19 or 20 after original 56 contracted for.

(1) Allows correction with sloppy contracts.

2. Can’t contract around author’s termination right.

3. Policy issues:

a. Authors can’t make credible promises forever.

b. Aren’t sure authors will make good choices at first instance.

c. Authors may not be in best bargaining position.

F. Formalities

1. Publication and Notice

a. 1909 Act: copyright protection with publication + notice – no notice, no rights.

(1) Policy benefits:

(a) Rewards first-mover

(b) Incentive to publish and start to make money.

(d) Increases public domain through mistakes.

(2) Policy problems:

(a) Lots of problems with determining publication.

(b) Divestive publication = “general” publication divests rights.

b. 1909-1976: very technical rules with small savings provision.

c. 1976-March 1989: needed notice but law forgiving.

d. Post-1989 (response to Berne): dropped technical rules; notice optional

(1) Modest incentives to give notice.

(a) Optional notice kills innocent infringer defenses.

(b) Allows constructive knowledge inference.

2. Deposit

a. Don’t have to give copy to government, but encouraged.

(1) Fines.

(2) Provides evidence in event of suit.

3. Registration

a. Way to cure notice mistakes.

b. Pre-1979, had five year period to cure.

c. Evidence issue.

d. Not a filtering step like patents because no serious review.

e. Rationale:

(1) For US works in US, must register, or attempt to do so, before suing for infringement.

(2) Prima facie evidence of things claimed in registration.

(3) Can’t get statutory damages or attorney’s fees without filing, and harder to prove actual damages.

f. Other options: more rigorous system because easier to track, but