Statutory Evolution

Copyright Act of 1790

authors and their assigns
maps, charts, books
14 year original, 14 year renewal
upon registration

Copyright Act of 1909

authors and their assigns
all the writings of an author
28 year original, 28 year renewal
upon publication, not registration
many formalities

Copyright Act of 1976

Overview

§ 101: definitions
§ 102(a) copyright SUBSISTS in original works of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived, reproduced or otherwise duplicated. Works of authorship include…
§ 102(b): only expression, not ideas
§ 103: Compilations and derivative works
§ 106: Exclusive rights
§ 107: Fair Use – Four Factors

§ 109: First Sale Doctrine/phonorecord & software protection

§ 114: Exclusive rights in sound recordings don’t extend beyond the actual sounds recorded
§ 115: Compulsory license for making and distributing phonorecords – but can only change it to the extent necessary
§ 201: Ownership of copyright goes to author; works for hire: employer is author and owns all copyrights unless agreed expressly in written instrument
§ 203: Termination (for licenses granted after 1978; for before 1978, see § 304)
§ 204: Transfer
§ 301: Preemption
§ 302: Duration
§ 303: Duration for works created but not pub’d before 1978
§ 304: Duration for works still in their first term in 1978/Sonny Bono
§ 401: Notice may be placed
§ 402: Notice for phonorecords and sound recordings
§ 404: Notice for contributions to collective works
§ 405: Omission of notice on certain copies of phonorecords
§ 512: Liability for online infringement
§ 602: Infringing importation

Subject matter § 102

Protected works of authorship include (but are not necessarily ltd to):

(a)Literary (§ 101 def.): all works written in words or symbols regardless of medium in which they are embodied

Programs: source and object code even if not readable by humans (Apple v. Franklin); ROM chip is “fixed” medium

(b)Musical

(c)Dramatic works

essentially redundant since each component could be covered under a different provision

(d)Pantomines & Choreographic works

must still be fixed s/where

(e)Pictorial, graphic & sculptural works

includes all such elements embodied in “useful articles” even if that article’s function is mostly utilitarian and therefore not eligible for protection itself AS LONG AS (ii)
separable from useful article (Mazer)
even though could be protected under design patent
“must stimulate in mind of beholder a concept that is entirely separable from its utilitarian functions” – artistic belt buckles yes (Kieselstein), but not plastic mannequins or pig noses (Masquerade)
If form motivated by function, usually not copyrightable

(f)Motion pictures and other a/v works

If a live show is being transmitted as it is being fixed, it is protected
Characters

-Learned Hand specificity test: the more specific, the better the chance; no right to “stock” characters

-Maltese Falcon Test:

-if character constitutes “story being told” – Rocky – then protection; if ancillary, no protection

-Hammett only sold rights to one Maltese Falcon story, not to the Maltese Falcon character; merely a ltd license, he still held rights to create other stories and to create derivative works, didn’t sell that (K was for too little if that was the case) b/c could separate the character from the story, so not necessary to transfer full rights

(g)Sound recordings

the aggregation of sounds, not the tangible fixation
kind of a joint authorship concept: producers who create the phono-record along w/ the author, musicians, etc… different expression from song, which is strictly the copyright owners’ work
NOT including sounds accompanying movie or a/v work

(h)Architectural works (1990)

as embodied in building or in plans
doesn’t extend to standard features or elements that are functionally req’d

(i)Boat hulls (VHPDA as part of DMCA)

NOT ideas, procedures, process, systems, modes of operation, concepts, principles or discoveries

Requirements § 102

Originality

(a)independent creation by author

two works claiming simultaneous, independent fixation: Lichtman’s E concern theory means no one gets protection

(b)modicum of creativity

can be found in copies if sufficient skill req’d (Bell v. Catalda) and/or if simply used “idea” to recreate work (Burrow-Giles)
evaluate work as whole, not in most minimal components (Atari)
after Bleistein, judges do not determine what is art; protection extends to a/thing w/ original elements, so ads can be protected
but not banal things:

-envelopes in Magic Mktn’g did not get protection

-theory: not valuable, why waste system on this? Inexpensive, why bother protecting? Evidentiary Problem: widely disseminated, difficult and expensive to prove who infringed

(c)idea/expression

Merger: if using the idea requires copying, then no copyright protection
if idea can only be expressed in one (or very ltd) way, then merges, and work can’t receive protection

-Morrissey: so few ways to explain rules of a contest that court threw case out even though it seems that they did in fact copy; CBA: worthless rules lose out rather than engage in expensive litigation

basic phrases, drawings, etc… that others need to use

-again, Lichtman thinks this is about E issues: hard and expensive to litigate if so obvious that could easily have dreamt it up in a cave

not underlying research material: inefficient if e/one had to start over from scratch
computer menu commands are not copyrightable, but their order is

-Lotus v. Borland: court refuses to copyright Borland commands b/c worried about lock in. While new product might be better, will face too high a user cost/barrier if users are faced w/ prospect of not only learning new program but also not being able to convert their old macros. NB: lock-in only works to explain why people don’t switch to marginally better products; will switch if CBA is positive

Maybe this is all an ex-post-facto pragmatic analysis: what we want to protect, we call expression; what we don’t, we call idea. Ask why they’re doing this.

-Toro: wanted to copyright replacement part numbering system; if could, then no competitors could sell their cheaper parts and Toro would have a monopoly, consumers would suffer. Court said idea.

Fixed in any tangible medium of expression (not req’d for state protection)

(a)By or under authority of author (§ 101)

author doesn’t have to do it h/self, but must authorize fixation in order for it to count

(b)From which they can be perceived, reproduced or otherwise communicated

Either directly or w/ the aid of a machine: by machine is okay even if can’t be perceived directly by people (White-Smith Music had held that piano rolls weren’t copyrightable b/c could only be perceived by machine)
§ 102(a) provides for perception by means now known or later developed

(c)Doesn’t have to be fixed permanently, but must be more than transitory

video-games are protected b/c content is for the most part fixed, even though players do “create” game through their intervention – that part isn’t fixed, the general “feel” and program are

(d)Simultaneous Fixation

copyrighted so long as an authorized person is transmitting it
must be transmitting, not just jotting down notes
transmit & record; or call on the phone and record

Computer Programs

Spread cost over multiple copies w/ some legal protection
Even though cannot be perceived by humans, we protect computer programs b/c they can be perceived by machine – and we can perceive what they do(?)
Idea/expression: if only one way to express program, then merges (Apple)
Fixed

(a)normally fixed when data stored on hard disk or floppy

(b)RIO/MP3

(c)Web page interface issue

Compilations § 103

Facts not protected

(a)Not original – addresses, names, etc… exist w/out author independently creating them

(b)Sweat of the brow struck down in Feist in favor of “spark of creativity”

(c)Compilation of banal things not copyrightable: “for sale” signs packet (Sem Torq)

Think incentives – L&E

(a)If we copyright (or grant licensing), will force people to invest from scratch  waste and/or exorbitant licensing fees

(b)But if so, will be a mad rush to independently re-create the information so as to be able to license it to others at a lower cost

(c)This keeps fees low enough to recoup profits, but too low to attract competitors

Creative selection, coordination or arrangement of facts is:

(a)Can copyright yellow pages b/c we want to create incentive to come up w/ better classification system; for same reason, can’t copyright white pages (can prove copied seeds, but that doesn’t get you a/thing b/c hardly any damage)

(b)West Publishing v. Mead Data Central: opinions are not copyrightable, West’s arrangement is irrelevant – can be copied; pagination isn’t creative, it’s simply numbering, has no inherent meaning.

If copyrighted it, would be tying up an industry standard
Policy-driven

Parts Greater than the Whole

(a)If general feel is enough to evoke something copyrighted, then infringes w/out taking either actual words or images (Roth Greeting Cards)

(b)While individual components may not be “creative”, can combine them in a novel way – depends on what level of abstraction you take it (Atari: geometric shapes into game)

Authorship

Not the same thing as ownership of copyright
Determines duration and right of termination, so it’s important
Default rule is author has it
Unless it’s a work made for hire – § 201(b)

employer is the author and initial owner of copyright UNLESS have agreed to other terms if:

(a)work made w/in scope of employment by a FT employee (employer is author but can alienate copyright if does so in writing)

CCNV guidelines based on agency law

-Hiring party retains control over details of execution, tools, etc

-Hiring party retains control over the work

-Employee is FT or supplies, space and materials supplied by employer

In such a case, author is always employer; can allocate copyright ownership, but not authorship

(b)OR, ordered or commissioned for use as (and agreed in written instrument that this is a work for hire; can still alienate copyright):

collective work
translation
part of motion picture
atlas
compilation
test
test answer

(these are the types of things that we assume would not have been created but for being commissioned, so more natural to give authorship to party responsible for bringing them into existence)

NB: majority reads § 201 to mean that can K authorship away as well, but minority (and Lichtman) thinks it means can K lesser rights – such as copyright – but never authorship
if unsure that it’s a work for hire, good to get assignment of copyright from artist; shorter duration than authorship, but better than nothing and usually sufficient for needs of employer

joint work – § 201(a)

each contribution must be copyrightable by itself:

(c)de minimis contribution doesn’t qualify (Rent)

(d)research and ideas neither (Childress)

must be inseparable or interdependent whole
intended labors to be so
why all these limits?

(e)A lot at stake: e/ gets half the rights to the undivided whole, can K w/out consent of other author

(f)E concerns

(g)Spurious lawsuits

(h)Slippery slope

(i)Not tying up too many ideas

collective work – § 201(c)

each contribution must be independently copyrightable
each contribution retains its copyright and collector must obtain permission

Duration – § 302 – § 304

After 1978, subsists from creation and lasts life of author + 70 years
Pros and Cons to “ltd time” provision (why the 1998 Sonny Bono Act may or may not be unconstitutional)

balance incentives to create w/ benefit to society
longer period m/b concerned w/ stewardship, moral rights
rent seeking: politicians benefiting from lobbying money while subtly short-changing public
no incentives when dealing w/ retroactive protection

Math games:

If in first term in 1978 (so pub’d after 1950), gets automatic 67 year renewal term
If copyright expired before 1962: publication plus 28 + 28 (if renew) – basically, works published in 1906 or before are in PD
If copyright expired after 1962: 47 new term (w/ automatic renewal) b/c Congress retrofitted 1976 Act to anything still in effect in 1962
If copyright expired after 1998: 67 new term (w/ automatic renewal) – 95 years from original copyright date
If fixed after 1978: life of author plus 70 (unless pseud/anonymous or work for hire  95 from pub or 120 from creation, w/ever is first)

Renewal

Second bite at the apple theory
Allows works to fall into public domain faster b/c won’t bother renewing e/thing

Publication & Formalities § 401

notice not mandatory after 3/1989

does give advantages:

kills innocent infringement defense b/c counts as constructive knowledge
was good for public since immediately knew w/er or not was copyrighted

if published before 1989, will fall into PD if pub’d w/out notice unless owner registers w/in 5 years of publication AND makes reasonable effort to add copr. notice to copies already possessed by members of the public (Sparkle Toys: reasonable doesn’t include affixing notice to Transformer toys already in customers’ homes) § 405(a)(2)
If pub’d after 1976, 5 year grace period

registration not mandatory after 3/1989

Still weak incentives to do so:

prerequisite to sue for infringement
PF E of your claim
Can’t get statutory damages and attorney’s unless you do

requirements before1989 Amendment

general publication & notice

ltd is not divestive (but it could be investive when publication was required)

-must be ltd as to both distribution and purpose

-test: do you retain control over who gets it?

Oscars: giving statuette away on nat’l TV for 12 years is NOT considered general publication b/c given away to a select group of people for a ltd purpose – no intent to be general publication
MLK “I have a dream” speech: policy-driven result – gave him protection even though really it was general publication

Transfer of copyright

201(d)(1) – fully alienable: can sell, transfer, w/ever
201(d)(2) – divisible: can limit it in time or place

Pre-1978: governed by Pushman Presumption, which held that unconditional sale of unpub’d work implied full transfer of right of first publication along w/ material object
Today, no such presumption:

must have written instrument for exclusive transfers – § 204
oral is fine for less than exclusive

Termination – § 203

Not alienable

worried about unequal bargaining position between authors and publishers
NB: only applies to licenses granted starting in 1978

Law is paternalistic towards authors

Can terminate K after 35 years
Can terminate at end of first copyright period and recapture additional years

Doesn’t really affect a/thing

while may seem that would diminish value of transfer, most of the income is earned in the short run
still, might drive down price author can extract from publisher
Lichtman: most publishers don’t even know about termination, most transfers go back b/c worthless after a while
ONLY IN US! World market is far more valuable

Doesn’t affect derivative works – § 203(b)

even after author terminates transfer, original transferee retains right to continue to use derivative works prepared while had license, just can’t make new ones
so can get rights to Star Wars book after 35 years, but can’t take back movies
QUESTION: if characters are the story being told, does that mean can’t have any sequels to the movies if give back the book?

Exclusive Rights § 106 (subject to § 107-120)

Is § 106 exclusive or investive?

Only copyright owner has right to do X

a)implies rights of access to copy even if sells object

b)implies continued control over object’s life

Others don’t have right to do X

a)you can’t copy, but that doesn’t mean copyright owner can get to it to do so

b)not so much control after sell object

Moves

Own valid C
Show other copied (or otherwise violated)
Violation was improper

Reproduction

1. Photocopying cases below

Distribution § 106(3)

Exclusive right is ltd to first sale: can’t insert provision restricting use afterwards
L’Anza: we don’t like the outcome b/c it allows mfrs to escape copyright law by moving abroad since can lawfully import works that would otherwise be infringing if mfrd in US

Result driven by fact that this “copyright” claim was really more about protecting method of distribution than a/thing else
Would probably be more like envelopes in Magic Mktng than artwork: banal

Applied to phonorecords

difference between right to musical work and right to sound recording
can violate both by distribution
compulsory licensing – § 115

-negotiate K or take statutorily-defined fee

-reserves right of first publication

-doesn’t give rights to publish lyrics, perform, or wholesale transform a work – only “to the extent necessary”

-only thing it does is force people to negotiate for fuller rights

Derivative Works

Copyright owner has exclusive right to exploit his work by recasting, reforming, abridging or revising it  TRANSFORM
To avoid liability, non-owner must either

(a)Obtain permission

(b)Be covered by first sale § 109

Mirage: CA 9 screws up by finding cutting pictures and affixing them onto tiles violates derivative rights; Easterbrook thinks this is covered by first sale since in no way transforming the work – adhering onto tile is not sufficiently transformative
Lee v. ART: subsuming original  no liability b/c no lost sales

-but what if Lee wanted to make tiles, why can’t we consider that a sequel?

Price discrimination: if allow First Sale as defense, undermining owner’s ability to charge different prices to different markets

-if don’t recognize it, allow owners to charge price of average expected use rather than most extreme use; then, if most extreme use comes up, can renegotiate the fee

NOT a defense if it is in fact a derivative work (if there’s any transformation) – isn’t that circular?
PHONORECORDS are exempted: can’t rent, lease, do anything else that might displace purchases (movies are okay b/c videos are not where movie makers make the bulk of their income; also, not as likely to watch a movie as many times as you are to listen to a record)

(c)Fair Use

In all our cases, the original was in the PD

(a)Evidentiary concerns: if grant copyright to new work, will be difficult to know w/er subsequent artists based their work on the original PD work or on the new copyrighted work; very conservative in granting new copyright

(b)Gracen: artist’s painting of Dorothy, while combining several original images to create new picture, is not sufficiently original to support copyright