Copyright

Fall 2007 Schechter

I. Policies Behind Copyright

A. What is Copyright? Copyright is a legally conferred monopoly that gives the holder an exclusive right to make copies of a particular creative work. If someone makes a copy w/o permission of copyright holder, that person is an infringer. Modern Copyright gives the holder more than the right to make copies – it includes the right to display, perform, or use it to make derivative works.

B. Why do we Need Copyright?

1. It encourages authors to produce work. There are high fixed costs for creating works and authors need to be able to make up those fixed costs. The harder it is to copy, the easier it is for an author to make up their fixed costs. Copyright Law Attempts to Balance the Pros and Cons.

2. Disadvantages of Copyright:

i. Makes works more expensive

ii. May hinder subsequent creation

iii. Could hinder freedom of speech

iv. Monopolies are not economically efficient

3. Alternatives to Copyright?

i. Copy could be inferior quality, therefore not perfect substitute

ii. Copying takes time, therefore during that interval original publisher has no competition.

iii. Contractual alternatives

iv. Technological fixes could limit copying.

II. The Basics

  1. The Legal Basis for Copyright: Constitution itself: “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

1. “Science”  literature, art  copyright

2.“Useful arts”  technology  patent

B. 1976 Copyright Act became effective 1/1/1978

1. Copyright law is not retroactive.

2. Older stuff governed by 1909 Act

C. Requirements for Copyright Protection

1.§ 102: Copyright protection: original works of authorship fixed in any tangible medium of expression. . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

Categories (list not exclusive: "works of authorship include")

1.Literary works

2.Musical works, including words

3.Dramatic works, including music

4.Pantomimes and choreography

5.Pictorial, graphic, sculptural works (PGS)

6.Motion pictures and a/v works

7.Sound recordings

8.Architectural works (added in 1990)

a. “Fixation”

i. § 101 Fixation: (1)Embodied in a copy or phonorecord (2) by or under the authority of the author (3) sufficiently permanent or stable to be perceived for a period of more than transitory duration.

(1) Copy: Material object other than phonorecords in which work is fixed from which work can be perceived directly or indirectly with the aid of a machine. Ex: book, paper, clay, canvas

(2) Phonorecord: Material object in which sounds are fixed from which sounds can be perceived directly or w/ aid of machine. Ex: CD, tape, album, mp3, etc.

ii. Other issues w/ Fixation:

(1) Work is “fixed” if fixation is made simultaneously w/ its transmission (recorded at the same time of performance)

(2) © attaches as soon as work is fixed.

(3) A live performance is not “fixed” if it’s not transmitted. Therefore, if Improv is not recorded, it has no copyright.

(a)§1101: Anti-Bootlegging Provision: Special rule that says that live music performances receive special protection. Prohibits 3 things w/o performers consent:

(i): cannot fix the sounds of a live musical performance in a copy or phonorecord, or to reproduce copies

(ii): cannot transmit or communicate to public sounds or images of live musical performance

(iii): cannot distribute, sell, rent, offer or traffic in any copy or phonorecord described in (a)(1)

(b) Argument against §1101(1); and (2):

(i)Does not fix the rights for a limited period of time, which may violate IP Clause

(ii) Constitution refers to "writings of an author" - is a musical performance that is not fixed a Constitutional "writing"?

(4) RAM (Random Access Memory):Consensus is that a work is fixed when it is stored in the RAM of your computer.

b. “Original”: Not defined in statute, 2 requirements: Pretty low threshold.

i.Made from Scratch

(1) not a copy of another’s work

(2) need not be novel, but can merely be independent creation of similar thing.

(3) Can be a derivative work

ii. Modicum of Creativity

(1)Must have a small degree of creativity (Magic Marketing)

(2)Must be more than a form of expression dictated solely by functional considerations (Magic Marketing)

(3)Distinctive typefaces are not protected (Magic Marketing)

(4)No sweat of the brow rule

(5)Words, phrases, titles, slogans mere variations of typographic ornamentation lettering or coloring; mere listing of ingredients, contents, don’t have copyright protection (Magic Marketing)

(6)A photo is copyrightable: the way the subject is posed, lighting, etc is original. (Burrow-Giles Lithographic)

(7)A picture that is used as an ad is still copyrightable. (Bleistein)

D. Idea/Expression Dichotomy

1. §102(b): © does not extend to “any idea, procedure, process, system, method of operation, concept, principle or discovery” regardless of the form in which it is described, explained, illustrated, or embodied in such work

2. Expression is copyrightable, ideas are not.

3. Justifications:

a. Ideas are building blocks

b. They are in short supply.

4. Addressing Computer Programs: Expression adopted by programmer is copyrightable, the process or methods embodied in program are not copyrightable.

5. Merger Doctrine: where there is no way to separate the idea from the expression, the two are merged and are not subject to copyright protection.

a. Morrisey v. Proctor & Gamble: Sweepstakes contest rules. There was no way to separate the idea of the sweepstakes contest from the specific words used, therefore, you can’t copyright the words of the rules, since that is the “idea” of the sweepstakes. They are merged.

6. Thin Copyright: where copyright is limited to the “precise wording” or very limited in scope. It’s not a complete Merger situation, but a form of stylized expression that is very necessary to the idea.

a.Continental Casualty v. Beardsley: insurance forms covering securities losses were published. Competitor copied forms, but not description. Court said that the copyright on the forms protected only the “explanatory” words – thin copyright – only the “precise wording employed by the copyright owner”. Forms were incidental to the underlying idea – thus no copyright infringement.

7. Blank Forms Exception: Generally blank forms are not copyrightable. It is utilitarian and not aesthetic.

a. Exception: where they convey information – like adding a description. (Bibbero Systems)

8. Baker v. Seldon: No protection for “utilitarian” aspects of a work – only on “aesthetic expression” of the work. (Baker: accounting system is not copyrightable. It is a system, which is an idea and would be better suited to patent system.)

III. Types of Copyrighted Work

  1. Compilations, Databases, Maps

1.Compilation §101: Work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship; term includes collective works

a.To be protectible compilation, whole thing must be more valuable to consumer than sum of its parts

b.Thus, assemblage of items must have some coherence, and bear logical relationship to each other

c.The individual parts of a compilation do NOT have to be ©able themselves

2.§103 Protection for compilation (or derivative work) extends only to material contributed by author of that work, as distinguished from pre-existing material employed in the work.

3.“Collective Works”: …such as a periodical, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective work.

4.There are two types of compilations: almanacs and anthologies

5.To create a compilation of works that are still copyrighted, you must have permission from the copyright owner.

6.Feist: Facts are not copyrightable, but databases, maps, almanacs containing facts are. How do they receive copyright protection: Originality in the

  1. Selection of facts
  2. Arrangement

7.Things to Consider: Is there another way to make the arrangement or other facts that would be included? Or is this the ONLY logical way to arrange the information. Is it an industry standard? Is the “information” in part based on judgment by an experienced professional?

8.There is NO SWEAT OF THE BROW. Energy and labor are not enough to prevent infringement. There must be some originality in the arrangement (Feist, phone books not copyrightable unless they contain some creativity. They are always alphabetical, no originality. – sweat of the brow is not enough).

9.Policy considerations: If phone books and other compilations aren’t copyrightable w/o originality, what is the incentive for other companies to create the work when they can just copy it. But maybe there are other ways to recoup losses – like contracting.

10.EU has a sweat of the brow policy for compilations.

11.Historical Facts are Not Copyrightable, but an “explanatory hypothesis” is. (Nash v. CBS). If author holds historical analysis out as facts, then they are facts and NOT copyrightable.

  1. Nash writes story about John Dillinger’s death which is different from the facts of how he died. Nash says the theory is wrong and creates his own theory. CBS show Simon and Simon took his theory. If Nash calls his book “historical fiction” it’s copyrightable, but if he calls it non-fiction, it’s not copyrightable.

12.Scenes a Faire Doctrine: Stock characters and settings that are indispensable are not copyrightable. They lack originality, because they are already in public domain. Ex: damsel in distress, knight in shining armor, haunted house, etc.

13.Choice of Information: Wainwright case Securities industry newsletter. D was taking info from letter and publishing it in Wainwright report. Newsletter sued. Wainwright said it was just facts and therefore no copyright protection. Court said it is protected – because of their choice of information to include.

14.Industry Practice: There is no originality or creativity in an industry practice. (West cases, the way things are cited, is not original)

15.Facts and Professional Judgment:If the “facts” are based in part on a judgment call by a professional (facts infused w/ opinion), then it is copyrightable information. (CCC Info Sys. -- McLean Hunter creates compilation of used car prices which they think will happen over different geographical areas. Prediction based on market info and judgment by experienced people. CCC copies it. Prices are copyrightable, because it is based in part on the author’s opinion.)

16.Maps: Facts are in public domain. However, maps can have copyright protection for the originality in the manner of expression employed in communicating the information. What could constitute originality on a map?

  1. different colored states
  2. Different map keys
  3. Selection/elimination of detail
  4. Legend
  5. In otherwords, the visual/aesthetic aspects of maps.

17.Argument for copyright protection of maps outside of the “originality requirement”. Founders created copyright protection for maps, so shouldn’t we have an exception for maps, because they typically don’t involve much originality?

18.Basically, maps are the same. What is the originality in the selection and arrangement of facts? (Sparaco’s technical drawing of a landscape was copyrightable, because it proposed changes to be made to the landscape – “original”)

20. Data within Compilations: If compilation is copyrightable, that does not take the DATA w/in the compilation out of public domain. (Assessment Tech)

  1. Derivative Works

1.Definition §101: A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

2.Pattern of Cases:

Work A (the original work)

Party A is usually not involved in lawsuit.

Work B(purported derivative work)

Made Under a License if Work A is Copyrighted

Made as a Copy of Public Domain Work if Work A is public domain.

Work C (allegedly infringing of Work B)

Contends that Work B is Insufficiently Original.

3.2- Step Analysis:

  1. Derivative Work B must be “more than trivially different” from original Work A, otherwise B does not have valid © (Baitlin & Son)
  2. C must have copied B.

4.For a derivative work to be copyrightable there must be some substantial difference, not merely trivial originality.

  1. Uncle Same bank case: Snyder created an Uncle Sam Bank and Batlin created one too. Snyder claims Batlin infringed. Snyder doesn’t have valid copyright because Uncle Sam is in public domain and Snyder didn’t make any changes that were noticeable to the casual observer.
  2. Batlin case endorses higher standard than normal –circuit split in how much variation is needed.
  3. Higher originality standard would leave more in the public domain.
  4. There are older cases that suggest that derivative works that use extreme skill are copyrightable. However this is dubious after Feist.

C. Pictorial, Graphic, and Sculptural Works

  1. Pictorial, Graphic, Sculptural WorksDefined in § 101:…include 2-D and 3-D works of fine, graphic, and applied art, photos, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architecturalplans. Such works shall include works of artistic craftsmanship insofar as their form butnot their mechanical or utilitarian aspects are concerned…”
  1. Useful Article is not ©able unless it’s separable.
  1. Useful article in definition of PGS: the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
  1. § 101 Useful Article: A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.
  1. Halloween costumes: Useful article, not copyrightable, because its utilitarian function is to clothe the body
  2. Nose masks: Not a useful article, so its copyrightable
  3. Jewelry: Not a useful article, its purpose is to look pretty, therefore copyrightable.
  4. Kids toys: Copyrightable.
  1. Separability: Copyright protects only those features of a useful article that “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
  1. So, some parts of “useful articles” CAN be protected.
  2. Courts look to find “some element that physically or conceptually can be identified as separable”
  1. “Conceptual Separability”: When the artistic aspects of an article can be conceptualized as existing independently of their utilitarian function.Independence is where the design elements can be identified as “reflecting the designer’s artistic judgment exercised independently of functional influences” (Pivot Point)
  1. Conceptual Separability tests: If article is useful, it only gets © protection if aesthetic aspects are separable from utilitarian aspects. The Rules are INCONSISTENT:
  1. Kieselstein: Belt Buckle. conceptual separability exists if the artistic features are primary, and utilitarian features secondary (belt buckle w/ jewels gets copyright because jewels are primary, utilitarian is secondary – arguably doesn’t really follow the test)
  2. Nimmer: Item would be marketable as art (problem, if artist is famous then everything sells as “art” – or opposite, art sometimes can’t sell, even though its art)
  3. Newman’s Dissent in Barnhardt: Torso Mannequins Test should be whether or not the work stimulates in the mind of the beholder a concept separate from utilitarian function
  4. Brandir:Bike Rake Design process was not influenced by functional considerations
  5. Goldstein: Artistic feature can stand alone as a work of art and item would be equally useful w/o those features.
  1. DesignPatents: can provide some protection for works that are both useful and artistic
  2. Fashion Designs: No ©, but proposed legislation
  1. The Merger doctrine doesn’t apply to visual arts (Mannion v. Coors)
  1. Photographs
  1. A photograph derives its originality in three ways: (Mannion)
  1. Rendition (light, angle, exposure, filters, developing techniques)
  2. Timing (being at right place at right time)
  3. Creation of Subject (the subject of a photo can be protected if the photographer created the scene or subject to be photographed.
  1. Diodato v. Spade: Bathroom stall and shoe case. Kate Spade didn’t infringe because the elements aren’t protectible. Woman on toilet is common picture. Most elements are scenes a faire – like since is stall, you automatically take picture from floor and have floor/door/walls/toilet in image. No artistic decisions being made. No infringement.

D. Architectural Works

  1. §101 Architectural works: is the design of a building as embodied in any tangible medium of expression, included a building, architectural plans, or drawings. The work includes the overallform as well as the arrangement and composition of spaces and elements in design, but does not include individual standard features.
  1. Scope of Rights §120
  1. (a) Other people can still take, distribute, and publicly display pictures, paintings, photos, or other pictorial representations if building is visible from public place.
  1. (b) Alteration/Destruction: Owner of building can change or destroy building w/o permission from copyright owner.
  1. Only protects aesthetic not functional aspects – like if you have solar panels or something – its not ©able.
  1. NO separability requirement.
  1. “Building”: term encompasses habitable structures that are used, but not inhabited, like churches, pergolas, gazebos, and garden pavilions.
  1. Interior architecture can also be copyrighted.
  1. Protection Under 1976 Act:
  2. Protected under PGS, which included technical drawings, diagrams and models.
  3. However, most architecture would fall under “useful article” and would only extend to features that can be identified separately from and capable of existing independently of the utilitarian aspects of the article.
  4. So blueprints were copyrightable, but if you looked at building and copied the look – it wasn’t infringement.
  1. Berne Convention and Architectural Works Copyright Protection Act of 1990: Required protection of architectural Works so Congress passed statute.
  1. Two step analysis:
  2. Examine architectural work to see if original design elements are present, including overall shape and interior architecture. If yes…
  3. Determine whether the design elements are functionally required.
  4. If not functionally required, the work is protectible without regard to the physical or conceptual separability.
  5. Overall pleasing design is copyrightable.
  6. Utilitarian elements are not copyrightable

E. Fictional Characters