Copyright Outline - First Draft

8/2/2019 Copyright Outline - First Draft

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Copyright Outline Prof. Judd, Fall 2010

INTRODUCTION

Nature of Copyrighto The right of an author to control the reproduction of his intellectual creationo A legal device to give the author the right to control the works reproduction after it has

been disclosedo Constitutional Mandate, Art. I, 8

"To promote the progress of science and useful arts, by securing for limited Times toAuthors and Inventors the exclusive Right to their respective Writings and Discoveries"

o Three Basic Limitations of Copyright Independent Production if a same or similar work is produced independently of

another work, then it may also be protected by copyright

Ideas Not Protected the ideas of a copyrighted work may be copied; it's the expressionof ideas that is copyrighted

Systems/Facts Not Protected systems and/or facts used in a copyrighted work are notthemselves protected; it is the overall presentation of the facts that is protected

o Non-rivalrous no danger of overuse or over-distribution; does not diminish with useo Non-excludable more than one person can use it at the same time

Purpose/Benefits of Copyrighto Fosters the growth of learning and culture for the public welfareo Encourages other people to produce more productso Promotes artistic expressiono Social welfare Equalizes opportunities between the classes (w/o , only the truly wealthy

could take time to create)

Concerns/Flaws of Copyrighto Moneyo Accesso Enforcement (especially in the era of the Internet)o Length of protection

It lasts too long and keeps things out of the public domaino Benefits the wrong people

large conglomerates and corporations and not the authors or their heirs History of Copyright

o Statute of Anne (1710) Granted to author of new work the exclusive right to print book for fourteen years Renewal period of 14 years if author living

o Act of 1790 (US) Similar to Statute of Anne

o The 1909 Act copyright began upon publication of the work with notice instead of the date of filing renewal term of 28 years certificate of registration declared to be prima facie evidence of the facts recorded

therein in relation to any work

o The 1976 Act


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Term extended to life plus 50 (now 70) Federal system preempts states all works, published or unpublished, protected once in tangible form

o Subsequent Amendments to the 1976 Copyright Act 1990 Visual Artists Rights Act; Architectural Works Copyright Protection Act; Computer

Software Rental Amendment

VARA authors of pictorial, sculptural and photographic works afforded limitedrights of attribution and integrity in the original physical copies of their works AWCPA protection granted to plans, models and completed architectural

structures

CSRA owners of computer programs have the exclusive right to authorize (or not)rentals of copies

1992 Pre-1978 Auto-Renewal; Audio Home Recording Act of 1992 Auto-Renewal for works pre-1978, renewal automatically granted after the first

term

AHRA surge on DAT recorders and media that was passed among the industry;serial copy management system in DAT machines

1993 Royalties Copyright Royalty Tribunal abolished and replaced with ad hoc royalty arbitration

panels

2005 ad hoc panels abolished and replaced by three Copyright Royalty Judges 1994 Berne Convention and WTO countries

Protection restored to countries that had US copyrights lapse due to failure tocomply with notice reqs so long as original copyright still in effect in home country

1995, 1998 Public Performance Rights Extended to digital transmissions of sound recordings

1998 Digital Millennium Copyright Act; Sonny Bono Copyright Term Extension Act DMCA prevented the circumvention of technological protections of works, etc, SBCTEA extended terms of music copyright to 95 years from publication or life plus

70

o upheld as constitutional in Eldred v. Ashcroft, 537 US 186 (2003) Traditional Justifications for IP Protection

o Natural Rights extends from Locke's property theory "I have expended effort, that effort belongs to me. Anything that results belongs to me" cannot claim more than what one put in "at least where there is enough and as good left in common for others"

o Personhood Hegel: one's creation is the growth of oneself.

property as a means for self-actualization, personal expression and individual dignity it has a value beyond its economic worth moral rights of "integrity" and "attribution"

Gives the creator an entitlement that is not based on its economic wortho Utilitarian/welfare/economic


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advancement of the public welfare by encouraging artists and inventors to invest timeand resources in their creations

the public gets the benefit of what is created the common view in the US often debated in the Internet age

Caseso Burrow-Giles Lithographic Co. v. Sarony(1884) [Oscar Wilde photo]

Held: a photo is a writing underneath the Act, and is entitled to protection Author = person who creates something not just by writing Original Congress granted protection to maps/charts Sarony's own individual thought went into the photo; especially since Sarony posed

Wilde for the photo

The originality threshold was met hereo Bleistein v. Donaldson Lithographing Co. (1903) [circus advertisements]

Held: Illustrations created primarily for the purpose of advertising are within theprotection of copyright.

Commercial purpose does not remove the work from being a useful art

Holmes: the court should not evaluate/judge artistic quality Low threshold for originality


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SUBJECT MATTER

Originalityo 102(a) Copyright protection subsists in original worksof authorship o Elements of Originality

Independent creation if a same or similar work is produced independently of anotherwork, then it may also be protected by copyright

Minimal degree of creativity bar set really low by Holmes in Bleisteino Magic Marketing v. Mailing Services of Pittsburgh (WDPa 1986) [designed envelopes]

the envelopes did not exhibit a sufficient degree of creativity to be copyrightable note: there is very little screening done at the Office; it rarely denies applications

o Feist Publications Inc. v. Rural Telephone Service (1991) two works may be original but not novel (closely resembles another work)

o Acuff-Rose Music, Inc. v. Jostens, Inc. The material claimed to be infringed is not copyrightable because it is itself a copy from

other sources

o Categories of Copyrightable Works (not exhaustive)

literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

Fixation in Tangible Formo Broad language: "embodiment in a copy or phonorecord, by or under the authority of the

author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or

otherwise communicated for a period of more than transitory duration"

o Fixation requires a copyrightable work AND a "copy"/"phonorecord"o Unfixed works are protected by State common law or statute, NOT federalo Live transmissions are afforded protection if they are simultaneously being recorded

Idea/Expression Dichotomyo 102(b) In no case does copyright protection for an original work of authorship 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.

you can copyright the forms and the text, but not the system (that's for patents) does not preclude others from using the ideas or information revealed by the work

o Baker v. Selden (1879) [account-keeping books] protection over the explanatory text, not the forms or text within those forms

o Bibbero Systems, Inc. v. Colwell Systems, Inc. (9th Cir. 1990) [superbills to insurance cos.] Blank forms which do not convey information are not copyrightable Led to The Blank Forms Rule 37 CFR 202.1(c)

o Situation Management Systems, Inc. v. ASP Consulting LLC(1st Cir. 2009) Dsdssd

Facts and Compilations


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o 101 a work formed by the collection and assembling of preexisting materials or of datathat are selected, coordinated, or arranged in such a way that the resulting work as a

whole constitutes an original work of authorship.

o Note: the copyright in a new version covers only the material added by the later author, andhas no effect one way or the other on the copyright or public domain status of the

preexisting material

o Feist Publications, Inc. v. Rural Telephone Service (1991) [telephone directories] Held: The names, towns, and telephone numbers copied by Feist were not original toRural and therefore were not protected by the copyright in Rural's combined white and

yellow pages directory.

Originalityreplaces the Sweat of the Browdoctrine Correcting the Misinterpretation (the "sweat of the brow" doctrine)

o 102 prohibiting in factso 101 defining compilationo 103 stipulating that the in compilations does not include the facts

themselves

Three Elements Required for a Copyrightable Compilation the collection and assembly of preexisting material, facts or data (whether or not

that data is able);

the selection, coordination or arrangement of those materials (in some sort ofcreative way); AND

the creation, by virtue of the particular selection, coordination or arrangement, ofan "original" work of authorship

Note: Not a strict standard originality requires only a minimal level of creativity; BUT there remains a narrow category of works in which the creative spark is utterly

lacking or so trivial as to be virtually nonexistent

o Factual Narratives Nash v. CBS (7th Cir. 1990) [conspiracy theory books/TV]

Held: CBS did not infringe on Nash because he presented his book as one of facts;CBS used Nashs analysis of history, not his expression

Calls to mind the idea ofscnes faire obligatory/stock materialo Compilations

Roth Greeting Cards v. United Card Co. (9th Cir. 1970) [greeting cards] Held: Cards are copyrightable even though the individual elements are not

o the whole card acts as a compilation; when looking at one card and then theother, you get the same feel

Dissent: no infringement; the pictures are different and the words are not able Sem-Torq, Inc., v. K Mart Corp. (6th Cir. 1991) [K-Mart signage]

Held: The assemblage of items in a compilation must have some coherence; thewhole must be greater than sum of its parts

CCC Information Srvcs. v. Maclean Hunter Market Reports (2d Cir. 1994) [car valuations] Held: The valuations in the Red Book are infused with the authors opinion, and

therefore able

Two Categories of Ideas that Generate Compositions


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1. ideas that undertake to advance the understanding of phenomena or the solutionof problemsNOT PROTECTED

o objective compilations of material that people will want to build on to furtherthe study of art/science

2. ideas infused with the author's taste or opinionPROTECTEDo there is a greater degree of creativity that goes into this category

NYMEX, v. Intercontinental Exchange, Inc. (2d Cir. 2007) [settlement prices] Distinguished from CCC; the merger doctrine precludes against copyright protection

o Extra-Copyright Protection of Databases EU defines databases as a collection of independent works, data or other materials

arranged in a systematic or methodical way and individually accessible by electronic or

other means

Goes beyond protection, creating a new sui generis right of protection Computer Programs

o 101 definition A "computer program" is a set of statements or instructions to be useddirectly or indirectly in a computer in order to bring about a certain result.

oFixation of Digital Media Post-1976 legislation appears to adopt the principle that entry of a work into the

memory of a computer makes a "copy" (i.e., a "fixation") of the work, apparently

without distinction as to the duration of the copy

Courts have typically equated temporary storage with the creation of a fixed copy The storage of works on a webpage constitutes a reproduction residing on the

server that hosts the webpage

Making the work available to download from a webpage is a distribution of copies tothe users' computers

Cartoon Network LP v. CSC Holdings, Inc.(2d Cir. 2008) not all temporary buffer copiesmade in the operation of computer systems necessarily constitute "copies"

o Copyright Protection for Video/Arcade Games Stern Elecs., Inc. v. Kaufman (4th Cir 1982) the audiovisual game was permanently

embodied in a material object, the memory devices, from which it can be perceived with

the aid of the other components of the game

Midway Mfg. Co. v. Dirkschneider(D. Neb. 1981) printed circuit boards are tangibleobjects from which the audiovisual works may be perceived for a period of time more

than transitory

Williams Elecs., Inc. v. Artic Int'l, Inc. (3d Cir. 1982) player interaction with a game doesnot make it less copyrightable since there are repetitive, fixed elements

o CONTU Final Report (1978) Computer programs are a form of writing Developments of technology reflect only the differences in the media and not the

nature of the programs themselves

The cost of duplication of programs is small while the cost of creating the original ishigh, therefore protection is desired

Four possible ways for computer programs to be disseminated 1. Creator may recover all of its costs plus a fair profit on the first sale of the work,

thus leaving it unconcerned about the later publication of the work

o creates a disincentive to programmers and consumers


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2. Creator may spread its costs over multiple copies of the work with some form ofprotection against unauthorized duplication of the work

o the most logical method, which can help promote/protect 3. Creators costs are borne by another, as, for example, when the government or a

foundation offers prizes or awards

o currently done sometimes, but not the best solution 4. Creator is indifferent to cost and donates the work to the public.

o currently done sometimes, but not the best solutiono Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir 1983)

Franklin copied 14 programs of Apple's so that their machine ACE 100 could be fullycompatible with the Apple II and its peripherals, etc.

Held: computer programs in object code or source code are protected fromunauthorized copying as literary works

From Dymow v. Bolton: if the same idea can be expressed in a plurality of totallydifferent manners, a plurality of s may result, and no infringement will exist

o Data General Corp. v. Grumman Systems (D. Mass 1993) Data General registered the source code of its program with the O Grumman copied the object code, claiming that it was the source code that was ed The court reaffirmed that registration is not needed for protection Source code and object code are considered as two representations of the same

computer program; it is the computer program itself that is copyrighted, not the code

o Lotus Development Corp. v. Borland International, Inc. (1st Cir 1995) Borland created Quattro, an excel program that copied the menu command hierarchy

directly from Lotus 1-2-3

The menu command hierarchy was a method of operation, therefore not able 102(b) a method of operation is the means by which a person operates

something, whether it be a car, food processor, or a computer

Concurrence: Computer programs represent a fundamentally different problem thanother questions because they are somewhere between and Patents

o Mitel, Inc. v. Iqtel, Inc. (10th Cir 1997) Disagrees with Lotus, finding that some parts of a method of operation may still be

able, despite being a part of the method of operation

102(b) does not extinguish protection if an expression is found in the method ofoperation

o American Dental Assn v. Delta Dental Plans Assn (7th Cir 1997) Held: the taxonomy system employed by the ADA was copyrightable since it satisfies the

minimal standards of creativity

Derivative Workso 101 a work based upon one or more preexisting works. A work consisting of editorialrevisions, annotations, elaborations, or other modifications, which, as a whole, represent an

original work of authorship, is a derivative work.

o 103(b) the protection in derivative works is limited and only extends to what is addedabove and beyond the original work(s) and does NOT affect the in the underlying work

o L. Batlin & Son v. Snyder(2d Cir en banc 1976) [small public domain Uncle Sam coin bank] The majority seems to espouse the sweat of the browdoctrine


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Held: To support a copyright, there must be at least some substantial variation OR somesubstantial amount of effortinto making the duplicate

Majority: "To extend copyrightability to minuscule variations would simply put aweapon for harassment in the hands of mischievous copiers intent on appropriating and

monopolizing public domain work"

Dissent: "Any distinguishable variation of a prior work will constitute sufficientoriginality to support a if such variation is the product of the author's independentefforts, and is more than merely trivial"

Reflects Holmes in Burrow-Gileso Gracen v. Bradford Exch. (7th Cir 1983) [Wizard of Oz plate]

The painting was insufficiently original to be granted protection The painting was a trivial variation of movie stills; it fails under Batlin The court found that were originality construed broadly, it would paradoxically inhibit

rather than promote the creation of derivative works

o Post-Gracen Standard for Originality in Derivative Works Higher standard there must be a sufficiently gross difference between the original and

derivative works

Higher bar for derivative works than original workso Schrock v. Learning Curve (7th Cir 2009) [Pictures of the Thomas the Train Toys]

New Test: whether there is sufficient nontrivial expressive variation in the derivativework to make it distinguishable from the underlying work in some meaningful way

There is nothing in the Act that requires derivative works to have more originality,they just need to be readily distinguishable from predecessors

Pictorial, Graphic and Sculptural Workso 101 includes 2D and 3D works of fine, graphic, and applied art, photographs, prints and

art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including

architectural plans.

o Photographs Mannion v. Coors Brewing Company(SDNY 2005) [Kevin Garnett Photos]

A photo may be original in three respects which are NOT mutually exclusiveo Originality in Rendition

Copyright protects not what is depicted but howit is depicted Ex: SHL Imaging, Inc. v. Artisan House, Inc. (SDNY 2000) what made the

photographs original was not the lens and filter selection themselves, but the

effect produced by the lens and filters selected, among other things

"Unless a photo replicates another work with total or near-total fidelity, itwill be at least somewhat original in the rendition"

oOriginality in Timing "A person may create a worthwhile photo by being at the right place at the

right time"

Limited by the principle that in a photo ordinarily confers no rights overthe subject matter

It is the image that exhibits the originality that qualifies for protection, notthe underlying subject

Ex: Pagano v. Chas. Beseler Co. (SDNY 1916) photo of the NY Public Librarywas able, but not the subject itself


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o Originality in Creation of the Subject A photo may be original to the extent that the photographer created the

scene or subject to be photographed

Ex: Rogers v. Koons (2d Cir. 1992) Puppies, a photo of a contrived scene of acouple on a bench with eight puppies, was protected by so that a

sculpture replicating the photo was not allowed

An artist who arranges and then photographs a scene will have the right toprevent others from duplicating that scene in a photo or other medium The court found that the photo was original in rendition andin creation of subject Note: idea and expression merge in visual art/photos in a way that is not

contemplative in literary works from where the idea/expression dichotomy came

o Here, there is a merger in the photo, but we're going to protect it allo From Baker v. Selden, the idea/expression dichotomy is not intended to apply to

ornamental designs or pictorial illustrations addressed to the taste

Diodato v. Spade (SDNY 2005) [under-stall shoes/bag photo] A photo of a woman on a toilet not able since all of the elements involved are

pretty much given

The court employed a fairly general level of abstraction by looking at it as a whole Court invoked the scnes faire doctrine something entirely typical to, or

characteristic of, the genre

o this is something that we want to protect by NOT giving it protection so thatothers may use it

o Ex: damsel in distress, star-crossed lovers, etc.o Useful Articles/Applied Art

Definition 101 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. Basically, things that are designed to be aesthetically appealing but also inherently

functional

Much tension here between copyright and patent Copyright Alternatives

Design Patent designs that aren't functional; 14-yr term of protectiono Very expensive and take a long time to get; not a good alternative

Mazer v. Stein (1954) [lamp with a statuette base] Original works of art do not cease to be able, as works of art, when they are

embodied in useful articles

Patent does not preclude protection; "double-dipping" is okay Works of artistic craftsmanship insofar as their form but not their mechanical or

utilitarian aspects are concerned are found to be able

Masquerade Novelty v. Unique Indus. (3d Cir. 1990) [animal masks] The court reversed a holding that masks configured to resemble the noses of a pig,

elephant and a parrot were "useful articles" because they made you laugh

Invoking an emotion doesn't make something a useful article Courts have consistently said that masks are able materials

Separability


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The principle that protects only those features of a useful article that can beidentified separately from, and are capable of existing independently of, the

utilitarian aspects of the article

Copyright protection extends only to the element being protected and does notcover the overall configuration of the utilitarian article as such

Two different kinds of separabilityo Physical springs from Mazer; it's possible to separate the statuette from thelamp and they can both exist separately from one anothero Conceptual when physical separation isn't possible, it shouldn't be a bar to

copyrightability, etc.

Second Circuit Separability Case Lawo Kieselstein-Cord(1980) belt-buckles were found to be applied art because the

ornamentation, ed part could be removed and not affect the functionality of

the belt itself

the ornamental features were not required by/for the utilitarian function ofthe belts

o Carol Barnhart(1985) mannequins of human torsos were not able becausethe aesthetic and artistic features of the forms are inseparable from their use as

utilitarian forms

the artistic features (the shape of the breasts, and necks, etc.) werenecessary for the function of the form

Dissent (Newman) the test is only whether the concept of the utilitarianfunction can be displaced in the mind by some other concept

o Brandir Intl. (1987) Ribbon Rack not able because it was redesigned to bemore functional; its aesthetics cannot be distinguished from its functions

Adopted the Denicola Test: if design elements reflect a merger of aestheticand functional considerations, the artistic aspects of a work cannot be said to

be conceptually separable from the utilitarian elements Pivot Point International, Inc. v. Charlene Prods., Inc. (7th Cir. 2004) [mannequins]

o The court looked to conceptual separabilityo 6 Different Test for Conceptual Separability (all from 2d Cir.)

1) primary v. subsidiary (Kieselstein-Cord belt buckles case) the artistic features were primary and the utilitarian features were

secondary; people were buying the belt because it was pretty

2) marketable to someone, even if not useful, because it is aestheticallypleasing (Nimmer Test)

3) the article stimulates in the mind of the beholder a concept that isseparate from the concept evoked by its utilitarian function (Newman'sdissent in Carol Barnhart)

4) the artistic design was not significantly influenced by functionalconsiderations (Denicola Test found in Brandir Intl.)

5) the artistic features can stand alone as a work of art traditionallyconceived and the useful article in which it is embodied would be equally

useful without it (Goldstein Test)

6) the artistic features are not utilitarian (William Patry, Copyright Law &Practice)


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o The court basically thinks these tests are all saying the same thing: if you canlook at it and see that it is functional and also aesthetic and they can be

separated, then there you go

o The court used the Denicola Test, but on the exam we should use all 6o Dissent: Found Mara to be fully functional and incapable of separation from its

form

Mara's function and the aesthetic aspects of Mara are inextricablyintertwined; should NOT be granted Architectural Works

o Protection Under the 1976 Act Plans were protected, but not the building itself The definition of PGS was altered in 1988 to include "diagrams, models and technical

drawings, including architectural plans"

Architecture has a utilitarian function, so extends only to the items that areseparable, such as a gargoyle, frieze, etc.

Basically, unauthorized copying of the 2D plans was infringement, but constructing abuilding from those plans was not

Demetriades v. Kaufmann (SDNY 1988) one of a kind building can be copied designed a one-of-a-kind home; s got unauthorized access and had their

architect trace the plans

Court reiterated Selden v. Baker protection extends to the explanation of thework, not the use of the art or work described by the ed document

Held: tracing the plans was infringement, but building the house was noto The Architectural Works Copyright Protection Act of 1990

Berne Convention required protection for architectural works Separability no longer applies, so no longer listed in the PGS definition 101 the design of a building as embodied in any tangible medium of expression,

including a building, architectural plans, or drawings. Includes the overall form as well asthe arrangement and composition of spaces and elements in the design. Does not

include individual standard features.

The act applies to new works created on or after Dec 1, 1990, or works that areunconstructed and embodied in unpublished plans or drawings

Zitz v. Pereira (2d Cir. 2000) an architectural work is not protected if it wassubstantially constructed before 12/1/1990

120. Scope of Exclusive Rights in Architectural Works (a) Pictorial Representations Permitted. The copyright in an architectural work

that has been constructed does not include the right to prevent the making,

distributing, or public display of pictures, paintings, photographs, or other pictorialrepresentations of the work, if the building in which the work is embodied is located

in or ordinarily visible from a public place.

(b)Alterations to and Destruction of Buildings. Notwithstanding the provisions ofsection 106(2), the owners of a building embodying an architectural work may,

without the consent of the author or copyright owner of the architectural work,

make or authorize the making of alterations to such building, and destroy or

authorize the destruction of such building.

House Report Two-Step Analysis


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If original design elements present and not functionally required, protected as anarchitectural work under 102(a)(8)

If original design elements but functionally required, go back to separability analysisunder PGS works

o Decisions Applying the Architectural Works Copyright Protection Act of 1990 Viad Corp. v. Stak Design (EDTX 2005)

Kiosk not protected by because it does not fall within definition of building Buildings are meant for human occupancy, intended to be both permanent and

stationary

Deference should be given to those structures that may be occupied Peter F. Gaito Architecture, LLC v. Simone Development(2d Cir. 2010)

Court affirmed the dismissal of the claim for lack of substantial similarity of ablearchitectural expression

s merely used the unprotectable concepts and ideas contained in s' designs Hunt v. Pasternack(9th Cir. 1999)

A work is protectable against infringement even though it exists only in the form of2D plans and has not yet been constructed

Attia v. Society of NY Hospital(2d Cir. 1999) assuming copying, there was no infringement of prelim sketches for renovated

hospital building on platform over highway

Walter Sedovic Architect, PC v. Alesandro (SDNY 1999) No infringement of church renovation plans, when there were differences in building

size, roof features and location of an entrance, and only similarities were that both

churches had a tall vertical main door and both buildings were in the shape of a

cross

Intervest Construction, Inc. v. Canterbury Estate Homes, Inc. (11th Cir. 2008) Compilations are entitled to the least, narrowest or thinnest protection

Characterso Nichols v. Universal Pictures Corp. (2d Cir. 1930) The less developed the characters, the

less they can be copyrighted

o Warner Bros. Pictures v. Columbia Broadcasting System (9th Cir. 1954) [Maltese falcon] Held: The characters were vehicles for the story told, and the vehicles did not go with

the sale of the story

o Anderson v. Stallone (CD CA 1989) [Rocky fan script] The characters were highly delineated and they were themselves the story being told Held: the characters are protected by , satisfying both Learned Hand's specificity

requirement and the "story being told" test from The Maltese Falcon

o MGM v. American Honda Motor Co. (CD CA 1995) [Bond-like commercial] Held: characters visually depicted in a TV show or movie are entitled to more protection

than purely literary characters

o Gaiman v. McFarlane (7th Cir. 2004) [Spawn characters created by Gaiman] M argued that the characters aren't able because they fall under the scnes faire

doctrine; they are stock characters

Cogliostro satisfies the basic requirements for a character He was drawn and given a voice and appearance and name


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He is no longer a stock character There is a difference between literary and graphic expression

Literary characters cannot be copyrighted because even if extremely well-described,one hardly knows what the character really looks like

Sound Recordingso Sound recordings the aggregation of sounds, NOT the tangible medium of fixationo Phonorecords physical objects in which sounds are fixed (not the same as above!!!)o Some sound recordings may involve two forms of authorship:

The performer whose performance is captured, and The record producer responsible for the recording session

o 101 works that result from the fixation of a series of musical, spoken, or other sounds,but not including the sounds accompanying a motion picture or other audiovisual work,

regardless of the nature of the material objects, such as disks, tapes, or other

phonorecords, in which they are embodied.

o Note: copyrighted sound recordings of a public domain musical composition will not restorethe recorded work to protection

o Newton v. Diamond(9th Cir 2003) [Beastie Boys flute sample] Held: the use of the looped sample of a flute did not constitute copyright infringement

as the core of the song itself had not been used

Only three notes were used; it was de minimis Dissent: there was a lot of expressiveness in those three notes

o Performers' Right of Fixation Rights of 1101(a) granted to performers of live musical performances

1) the unauthorized fixation of their performances; the reproduction of theunauthorized fixation in copies or phonorecords;

2) the transmission or other communication to the public of the sounds or soundsand images of a live musical performance; and

3) the distribution, sale, rental or offering to distribute, sell or rent copies orphonorecords of the unauthorized fixation, wherever the unauthorized fixation

occurred

Incongruities within Title 17 1101 protects unfixed works, leading to the creation of a "right to fix"

o Act requires fixationo Congress treats the "right to fix" as similar to , but different from ito United States v. Moghadam (11th Cir. 1999) Congress has the power, under

the Commerce Clause, to protect unfixed works that are ineligible for

protection

No time limit on future enforcemento An action could be brought in the year 2101 for a recording done in 1995o Kiss Catalog v. Passport Int'l Prods. (CD CA 2005) fixation is a constitutional

prerequisite to protection, but Congress has power under the Commerce

Clause to protect unfixed performances, and the exercise of this power does not

conflict with the norms of the Clause

o United States v. Martignon (SDNY 2004), rev. (2d Cir. 2007) SDNY: the -like nature of the performers' fixation right compelled

application of Clause limitations regarding fixation and duration; Congress


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could not elude these constraints by legislating under a different source of

authority

2d Cir: 2319A is not a law and its enactment is well within the scopeCongress's Commerce Clause authority, so it is constitutionally permissible

unless some other constitutional provision prevents its enforcement

Reaches some problems since fixation is required for and the Consdoesn't specify who needs to do the fixation, etc.

Government Workso 105. Subject Matter of Copyright: US Government Works

Copyright protection under this title is not available for any work of the United StatesGovernment, but the United States Government is not precluded from receiving and

holding copyrights transferred to it by assignment, bequest, or otherwise.

o Scope of the prohibition: a work prepared by an officer or employee of the US Gov. as partof that person's official duties

o Protection is disfavored for government works because: there is no competition with the government, so no incentive government workers are funded by TPs, so we don't want to make TPs pay twice


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OWNERSHIP

Authorshipo Forward v. Thorogood(1st Cir. 1993) [George Thorogood demo tape]

Held: the performer of a musical work is the author of the performance; the creator ofthe work is, at least presumptively, its author and the owner of the

Owning the chattel doesnt mean you own the o 202Ownership of a copyright is distinct from ownership of any material object in

which the work is embodied. Transfer ofownership of any material object does not of

itself convey any rights in the copyrighted work embodied in the object

o Common Law Copyright Until 1978, the right to make copies of an unpublished work wasgoverned typically by state law

o Two competing concepts of authorship authorship in the conception authorship in the execution

o Where there's a conflict between the two, conception wins out the intellectual is preferred over the physical

oLindsay v. RMS Titanic (SDNY 1999) [Titanic documentary] An example of conception basis for authorship Held: Where a alleges that he exercised such a high degree of control over a film

operation such that the final product duplicates his conceptions and visions of what the

film should look like, the may be said to be an author within the meaning of the Act.

o Andrien v. Southern Ocean County Chamber of Commerce (3rd Cir. 1991) a party can beconsidered an author when his or her expression of an idea is transposed by mechanical or

rote transcription into tangible form under the authority of the party.

o Lakedreams v. Taylor(5th Cir. 1991) authors may be entitled to protection even if theydo not perform with their own hands the mechanical tasks of putting the material into the

form distributed to the public.

Works Made for Hireo 101A work made for hire is

a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use as a contribution to a collective work,

as a part of a motion picture or other audiovisual work, as a translation, as a

supplementary work, as a compilation, as an instructional text, as a test, as answer

material for a test, or as an atlas, if the parties expressly agree in a written instrument

signed by them that the work shall be considered a work made for hire.

o 201. Ownership of Copyright (b) Works Made for Hire. In the case of a work made for hire, the employer or other

person for whom the work was prepared is considered the author for purposes of thistitle, and, unless the parties have expressly agreed otherwise in a written instrument

signed by them, owns all of the rights comprised in the copyright.

o Employee-Created Works Community for Creative Non-Violence v. Reid(US 1989) [homeless family sculpture]

Reid made sculpture for CCNV, but he exerted a lot of control Held: The default rule is that the artist who creates a commissioned work retains

ownership of the work because the artist is an independent contractor and not an

employee producing a work made for hire.


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o Note: this is a presumption which can be overcome by contract Four possible interpretations of a work made for hire

o right to controlo actual controlo agency lawo formal, salaried employees

The legislative history demonstrates:o 1) Congress intended to provide two mutually exclusive ways for works to

acquire work for hire status: one for employees and the other for independent

contractors

o 2) Only enumerated categories of commissioned works may be accorded workfor hire status

To determine whether a work is for hire, a court first should ascertain, usingprinciples of general common law of agency, whether the work was prepared by an

employee or an independent contractor (p. 314 has the relevant factors)

Scope of Employment Three things need to be proven (from Agency Law):

o The work was of the type which individual was hired to performo His or her creation of the work occurred substantially within the authorized time

and space limits of the job and

o The work was actuated, at least in part, by a purpose to serve the interests of theentity

Avtec Sys, Inc. v. Peiffer ownership is determined at the moment that the workis created; here, Peiffer created the Program outside the time and space constraints

of his employment

Cramer v. Crestar Fin. Corp. the creation of software outside of work fell within theemployee's area of responsibility, and he was "motivated at least in part" by a

purpose to serve the bank's interestso Specially Ordered or Commissioned Works

The Nine Statutory Categories for a Commissioned Work a contribution to a collective work part of a motion picture or other audiovisual work a translation a supplementary work a compilation an instructional text a test answer material for a test an atlas

Lulirama Ltd. v. Axcess Broadcast Servs, Inc. (5th Cir. 1997) despite adding language"for hire" into a contract, the court found that the jingles created by Lulirama were

audio works only, and needed accompanying images to constitute an audiovisual work

to fall into that statutory work for hire category

When does the writing have to be memorialized? The circuits are split


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Schiller & Schmidt, Inc. v. Nordisco Corp. (7th Cir. 1992)The writing must be signedby both parties, and it mustprecede the creation of the property in order to serve its

purpose of identifying the non-creator owner unequivocally.

Playboy Enters., Inc. v. Dumas (2d Cir. 1995) The parties must agree before thecommissioned work is created, but the agreement may be executed after work has

begin or is completed

Joint Authorshipo Thomson v. Larson (2d Cir. 1998) [RENT case]

T helped L as dramaturge at request of producers; claimed that the highly revisedOctober Version was due to her influence

Absent an agreement, need to look to the Childress two-pronged test A co-authorship claimant bears the burden of establishing that each of the putative

co-authors

o (1) made independently copyrightable contributions to the work; ANDo (2) fully intended to be co-authors

Note: Collaboration alone is not enough to be named co-author; the contribution ofeach joint author must be independently copyrightable Objective Evidence of Intent Decision making authority shared Billing matters: if you purport to grant exclusive rights in contract, that shows intent

to be the sole owner

Written agreements between the parties Written agreements with third parties

Court did not look into Ts claims since they were only raised now o Davis v. Blige (2d Cir. 2007) retroactive licensing not allowed as it diminishes the rights of

joint owners

Held: a license or assignment in copyright can only act prospectively Transfers of Ownership

o 101 an assignment, mortgage, exclusive license, or any other conveyance, alienation, orhypothecation of a or of any of the exclusive rights comprised in a , whether or not it is

limited in time or place of effect, but not including a nonexclusive license.

o 201. Ownership of Copyright (d) Transfer of Ownership.

(1) The ownership of a may be transferred in whole or in part by any means ofconveyance or by operation of law, and may be bequeathed by will or pass as

personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a , including any subdivision of any ofthe rights specified by 106, may be transferred as provided by clause (1) andowned separately. The owner of any particular exclusive right is entitled, to the

extent of that right, to all of the protection and remedies accorded to the owner

by this title.

o 204. Execution of Transfers of Copyright Ownership (a) A transfer of ownership, other than by operation of law, is not valid unless an

instrument of conveyance, or a note or memorandum of the transfer, is in writing and

signed by the owner of the rights conveyedor such owner's duly authorized agent.

o Divisibility


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The owner of any particular exclusive right is entitled, to the extent of that right, to all ofthe protection and remedies accorded to the copyright owner by this title

1909 Act does notallow for divisibility 1976 Act does allow for divisibility

Gardner v. Nike, Inc. (9th Cir, 2002) Court of Appeals relied on the 1909 doctrine(despite the 1976 Act overriding it) in holding that an exclusive transferee may not

further transfer those rights without consent of the transferor The language of 201(d)(2) granted an exclusive licensee no more than the

"protection and remedies" accorded a owner

Effects Associates v. Cohen (9th Cir. 1990) [SFX in crappy movie] Cohen only paid half for SFX used in his movie Held: Effects Assocs. gave Cohen an implied nonexclusive license to use the SFX

o Scope of the Grant New York Times v. Tasini(US 2001) [articles leased to Lexis]

Six authors wrote articles that the Publishers eventually leased to Lexis, whichreproduced them individually

The articles were stripped of their formatting and context (context is key here)

Held: 201(c) does not authorize the copying at issue here. The Publishers are notsheltered by 201(c) because the Databases reproduce and distribute articles

standing alone and not in context, not "as part of that particular collective work" to

which the author contributed, "as part of any revision" thereof, or "as part of

any later collective work in the same series."

HR Rep. 122-123 a publisher may copy/reproduce an article only when it is part ofa collective work, a revision of that collective work, or any later collective work in

the same series

o A publisher may not revise the article itself or include it in a new anthology or anentirely different magazine/collective work

Editor's Noteo 2d Cir. vacated settlement agreement on grounds that majority of the authors

had not registered the s in their works, and 411 requires registration to file

suit, therefore district court lacked jurisdiction

o March 2010 SCOTUS reversed holding that the above was not jurisdictional,and so DC had jdxn


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DURATION,RENEWAL,TERMINATION OF TRANSFERS,FORMALITIES

Durationo Copyright Term Progression

1790 14 years + 14 years renewal Note: author needs to be alive on the last day of the first time to renew

1831 28 years + 14 years renewal Note: author needs to be alive on the last day of the first time to renew

1909 28 years + 28 years renewal Note: statutory designation of successor interests if author didn't survive first term Copyright vests in the person who owns it when the renewal comes up However, author cannot bequeath something that hasn't been vested in him Therefore, if the author dies before the renewal term, then it vests in one of the

three statutory designees

Reasoning: want to keep this out of the estate 1976 life of author plus 50 years; no renewal

dramatic shift because at this time, EU was no longer doing the term, but doing thelife plus 50 scheme

1976 Act Radical Shifts From fixed term (56 years) to life plus 50 Move from dual published/unpublished system to Federal regulation of all works

o unpublished works before 1976 Act were protected forever under the StateCommon Law s

so long as you could keep the work unpublished, you got perpetualprotection because the limits didn't apply since this wasn't federal

protection

Need to determine if it was published before Jan 1, 1978, or after

Balancing of equities needed to accommodate massive changeso House Report (1976) Reasons for the change in Duration

1. 56 years not long enough to insure author and dependents fair economic benefitsfrom works

2. Growth in communications media has lengthened the commercial life of many works 3. Too short terms harm authors without giving the public any substantial benefit 4. Clears up the confusion and uncertainty involved in the vague concept of publication 5. Removes the renewal device, which was awful and a waste of time 6. Fair recompense for the loss of perpetual common law rights in unpublished works 7. Most countries have life plus 50, and this would fit with the Berne Convention

o Sony Bono Copyright Term Extension Act (1998) added 20 yearso Eldred v. Ashcroft(US 2003) [challenging constitutionality of the Sony Bono CTEA]

s alleged that the CTEA fails on constitutional limited times theory and 1st Amend Held: The 20-year retroactive extension of existing terms did not violate the Clause

or the 1st Amend.

Congress not evading time limit requirement Proper exercise of power, under rational basis review Promotes harmony with EU (Berne Convention, etc.) Economic incentive of longer copyright term


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Doesnt alter contours of protection, so no 1st Amend problem The Court stressed a substantial deferral to Congress in matters because, from Sony,

Congress has been assigned the task of defining the scope of the limited monopoly that

should be granted to authors, etc.

Stevenss Dissent: From INS v. Chadha the fact that Congress has repeatedly acted ona mistaken interpretation of the Cons does not qualify the Court's duty to invalidate an

unconstitutional practice when it is finally challenged in an appropriate case Breyers Dissent: stricter review strike down extension if

Benefits to private, not public Threatens to undermine expressive values in Copyright Clause If not Clause-related objective (here, extension arguably gave no added incentive to

authors of existing works)

o Works Created or Unpublished After 1977 302. Duration of copyright: Works created on or after Jan 1, 1978

(a) In General Copyright in a work created on or after January 1, 1978, subsistsfrom its creation and, except as provided by the following subsections, endures for a

term consisting of the life of the author and 70 years after the author's death.

(b)Joint Works In the case of a joint work prepared by two or more authors whodid not work for hire, the copyright endures for a term consisting of the life of the

last surviving authorand 70 years after such last surviving author's death.

(c)Anonymous Works, Pseudonymous Works, and Works Made for Hire In the case ofan anonymous work, a pseudonymous work, or a work made for hire, the copyright

endures for a term of95 years from the year of its first publication, or a term of120

years from the year of its creation, whichever expires first

(d) Records Relating to Death of Authors Any person having an interest in a copyrightmay at any time record in the Copyright Office a statement of the date of death of the

author of the copyrighted work, or a statement that the author is still living on a

particular date (e) Presumption as to Author's Death After a period of 95 years from the year of first

publication of a work, or a period of 120 years from the year of its creation, whichever

expires first, any person who obtains from the Copyright Office a certified report that

the records provided by subsection (d) disclose nothing to indicate that the author of

the work is living, or died less than 70 years before, is entitled to the benefit of a

presumption that the author has been dead for at least 70 years. Reliance in good faith

upon this presumption shall be a complete defense to any action for infringement.

o 303. Duration of copyright: Works created but not published or ed before Jan 1, 1978 (a) Copyright in a work created before January 1, 1978, but not theretofore in the public

domain or copyrighted, subsists from January 1, 1978, and endures for the termprovided by 302. In no case, however, shall the term of copyright in such a work expire

before December 31, 2002; and, if the work is published on or before December 31,

2002, the term of copyright shall not expire before December 31, 2047.

Renewalo Under 1909 Act, renewal not available unless author survived through the first term

Application had to be filed within the last year of the initial term If author died before renewal, right to renewal passed on to spouse, children or

executor or next of kin


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o Requirements: If work ispublished (a) Before Jan 1, 1964 file for renewal in 28th year of copyright term (b) From Jan 1, 1964 until Dec 31, 1977 renewal is automatic (c) After Jan 1, 1978 no renewal, just single terms of life + 70 years

o Renewals were not just extensions, but were new grants of This (re)new(ed) would be free and clear from any previous obligations Congress did this for two reasons:

to give the author chance to benefit from the success of his work and to renegotiatedisadvantageous bargains

to insure that author's dependent relatives would receive the benefits regardless ofthe agreements author entered into

o Differences from regular property rights reversion statute breaks continuity of title at the end of the first term statutory designation of beneficiaries Congress set up successive classes of person

entitle to take the renewal as a new personal grant of a right

o Fred Fisher Music Co. v. M. Witmark & Sons SCOTUS held that an author could validlyassign in the initial term of his or her interest in the renewal term

o Stewart v. Abend(US 1990) [Rear Window rerelease scandal!!] 1954 Hitchcock and Stewart created Rear Window 1968 author died before renewal; passed to a trust 1977H&S rerelease Rear Window during the renewal term but new owner doesnt like Held: owner's right to permit the creation of a derivative work passes to the heirs of

the author of the work, who are not bound by the original author's agreement to permit

such use.

Termination of Transferso Transfers made before January 1, 1978 304(c) & (d)

Policy to ensure that after extensions of copyright period under 1976 and 1998 Acts,the benefits of the extension would go to the author and successors rather than existingcopyright holders.

When: five year window beginning at the end of56 years from when protection was secured (publication & notice).

304(c)

o OR, only if the original would have expired prior to Oct 27, 1998 (effectivedate of Bono Act) [ started pre- Oct 27, 1940], then

at the end of75 years from when protection was secured. 304(d)o Note: 304(d) only applies to between Jan 1, 1923 and Oct 26, 1942 (pre-1923

has passed in to public domain)

Notice notice of termination to grantee or grantees successor must state effective date of termination must be served not less than 2 and not more than 10 years prior to effective date notice must be recorded with the Copyright Office before effective date

Scope can only terminate transfers that convey an interest in a renewal term, not transfers

of initial term

does not apply to works for hire


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does not apply to transfers by will (but does include those by widow, child, successoror executor)

Parties If grant by author terminated by author or, if deceased, any owner of at least half

of the termination interest.

If grant not by author can only be terminated by the person who made the grant.o (e.g., author dies, widow sells rights, but dies before timely notice of terminationcan be sent, no one can terminate)

o Transfers made after January 1, 1978 203 Policy: paternalistic protection of authors to compensate for uneven bargaining

positions at point of transfer

When: five year window beginning If transfer includes right to publish 35 years from publication date or 40 years

from execution of grant (whichever earlier)

If transfer does not include right to publish 35 years from execution. Notice

notice of termination to grantee or grantees successor

must state effective date of termination must be served not less than 2 and not more than 10 years prior to effective date notice must be recorded with the Copyright Office before effective date

o Scope does not apply to works for hire does not apply to transfers by will only applies to transfers by author, not successor transfers covers outright transfers, exclusive and non-exclusive licenses.

o Parties If grant by author terminated by author or, if deceased, any owner of at least half of

the termination interest.

If grant not by author cannot terminate Formalities

o Copyright Act of 1790 Formal Requirements (draconian) Publication Notice publication of notice in domestic newspaper for 4 weeks within 2 months of

record

Registration deposit copy with clerk of dist. court; if printed or published after actdeposit must be made prior to publication

Deposit one copy to Secretary of State with 6 mos. of publicationo 1909 Act: July 1, 1909 Dec. 31, 1977

State Common Law from Creation to Publication. Publication ends state protection (copyright in perpetuity) and begins federal

protection (constrained time limits by const. language)

Exclusive right to first publication If satisfy formalities, federal copyright protection from general publication to

expiration

Every copy bears copyright notice


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Specified content, form, and location of notice Error/omission leads to forfeiture of copyright

o Year inaccuracies could be fatal early dates were not fatal, but began from the inaccurate, earlier date notices postdated by more than a year were fatally defective

o Omission of notice was also fatal, unless by accident or mistake Sieff v. Continental Auto Supply(D.Minn. 1941) omission due to neglect oroversight was not excepted Wildman v. New York Times, Co. (SDNY 1941) omission through a mistake

of law not excepted

Formalities on publication starts clock running on limited term of protectiono Note: Heim v. Universal Pictures Co. (2d Cir. 1946) publication abroad w/o

notice in a nation that does not place the work in the public domain for that

reason will not prevent subsequently obtaining a valid US

If do not satisfy formalities, public domain Publicationis the trigger that requires formalities

General publication tangible copies of work distributed to the public in such amanner that allows public to exercise dominion and control over the work

Limited publication communicates contents of work to a select group for limitedpurpose

o No right of further distribution/copying Ferris v. Frohmanpublic performance of a spoken drama publication De Mille v. Caseyexhibition of a movie publication McCarthy v. White public performance of a musical composition publication Nutt v. National Institute, Inc.oral delivery of a lecture or address publication Estate of MLK, Jr. v. CBS, Inc. (11th Cir. 1999) *CBS using clips from I Had a Dream+

o CBS used clips from MLKs famed speech, claiming that written copies of thespeech given to the news before the speech constituted general publication

o Since those copies did not have notices, under the 1909 Act, the speech wastherefore in the public domain

o The speech was also published in a newsletter that was sent out This was found to be a general publication and would have cost MLK his

except it was decided that it was published/disseminated without his

consent

o Held: MLKs registration was valid because there was no general publicationo Dissent: This is bull. This was definitely a publication!

o 1976 Act: Jan. 1, 1978 Feb. 28, 1989 Fixation, not publication, is the dividing line. State protection for unfixed works only. No formalities required. Notice requirement in order to maintain copyright.

Publication is transfer/distribution to the public (limited publication does notcount)

Mere performance/display is not publication (some can qualify, but statute is silenton this line)

Put notice on every published copy, but looser requirements (i.e., where it wouldreasonably come to attention).


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Errors/omissions are not strictly fatal Opportunity to cure omission and preserve copyright If within 5 years of publication you register copyright with the O, and you use

reasonable effort to add notice to distributed copies, then omission/mistake is

cured.

o Berne Convention Amendments, Mar. 1, 1989 Present Notice is optionalon published copies Incentives to still use notice

Protect against claims on innocent infringement Cheapest, easiest way to notify public Deterrent effect against potential infringers, notice to them that you might be

willing to be litigious

Entitlement, not reward for fulfilling formalities Note: this is NOT retroactive

o Deposit and Registration (both 1909 and 1976 Acts, but failure to comply does not affectcopyright)

407deposits of copies in Library of Congress is mandatory (if not, then fines, but notloss of copyright)

US: this is not in violation of Berne Convention since it is not required for protection

"Shall be made" within 3 months of publication, unless exempted 2 copies of "best edition" unless otherwise specified Two goals

o Putting copies of the work in the Library of Congresso Make sure Congress has as comprehensive a record of copyrights

408(c) sometimes actual copies are not requiredo "secure test" regulation O may retain only a small identifying portion of

exams such as the LSAT

411registration is not mandatory. Copyright Office allows for electronic registrationo Fee: $65 by paper; $35 online

Cursory review, not like PTO. Failure to register does not affect copyright validity

o Must register in order to sue for infringement , unless youre from abroad (canregister after infringement happens)

Berne doesn't say anything about treating your own citizens worse thanforeign citizens

o Most copyrights arent litigated; can still license and collect royalties w/oregistration

o Would have been inappropriate formality under Berne: cant require non-USworks to register

Differences with depositso Does not have to be made by owner of the o Applies to unpublished as well as published workso Includes works published abroado May be made at any time during the subsistence of the

If not registered, then courts have no jurisdiction


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EXCLUSIVE RIGHTS AND INFRINGEMENT106106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and

to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords; (ALL WORKS)

(2) to prepare derivative works based upon the copyrighted work; (ALL WORKS)

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of

ownership, or by rental, lease, or lending; (ALL WORKS)

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and

other audiovisual works, to perform the copyrighted work publicly; (SOME WORKS)

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or

sculptural works, including the individual images of a motion picture or other audiovisual work, to display

the copyrighted work publicly; and (SOME WORKS)

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio

transmission. (SOUND RECORDINGS ONLY)

Reproduction Righto The right to produce a material object in which the work is duplicated, transcribed, imitated

or simulated in a fixed form from which it can be perceived, reproduced or otherwise

communicated, either directly or with the aid of a machine or device

o What is a Copy? 101 material objects, other than phonorecords, in which a work is fixed by any

method now known or later developed, and from which the work can be perceived,

reproduced, or otherwise communicated, either directly or with the aid of a machine or

device.

Includes the material object, other than a phonorecord, in which the work is firstfixed.

Also includes a fixation in temporary computer memory Intermediate Copying a copy made as a step in the creation of an end product that

does not itself incorporate the copied work Dispersed Copying when the components of a work are dispersed throughout a larger

work so that without reassembly the incorporated work is no longer perceptibleinorder for their to be infringement/copying, the components need to be reassembled

Cartoon Network LP v. CSC Holdings, Inc. (2d Cir. 2008) [Remote Storage DVRs] Held: buffering by the RS-DVRs does not satisfy the copy language of 101 Two Requirements for Copying

o embodimento for a period of more than transitory duration

The court shows that 1.2 seconds is not long enough to meet the more thantransitory duration requirement, but doesnt say what is long enough

o Proving Infringement Arnstein v. Porter(2d Cir. 1946) [copied songs?]

has no proof that was involved, but had proof that he was theoretically involved Court says that this should go to a jury because access is a question of fact; district

court was premature in dismissing this

Dissent: There is no legal claim since at most 5 notes could be heard that weresimilar, but they often had different rhythmical values, etc.

o Proof of Copying
http://www.copyright.gov/title17/92chap1.html#107http://www.copyright.gov/title17/92chap1.html#107


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Elements of a prima facie case Copying proved by admission, caught in the act or circumstantial evidence Circumstantial Evidence

o Accesso Probative Similarity only getting at the issue of whether something was

copied; not trying to prove that the copying was wrong (or even intentional)

2nd and 7th Circuits are split on this 7th Circuit overcame the split in the Ty(beenie baby case) by saying that if

they are strikingly similar, there is no need to show access since the similarity

itself is proof of access

o Inverse Ratio Rule if there is so much proof of access to the work, there is lesssimilarity required

If access is sketchy, then more similarity is required No amount of access will prove copying if there is no similarity at all

o Note: striking similaritymay require less access Expert testimony is desired/essential

o Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (SDNY 1976) [My Sweet Lord] The Chiffons song was really popular at a time when Harrison was very much

in the scene

Subconscious copying! H didn't know when he created the song that thechord pleased him because he had heard it used successfully by The Chiffons

Circumstantial Proof of Copyingo Heim v. Universal Pictures (2d Cir. 1946) Court declined to hold that similarities

between 's and 's songs resulted from access to and copying of 's song,

even though it was included in a major motion picture and sold in sheet music

o Selle v. Gibb (ND IL 1983, aff'd7th Cir. 1984) striking similarities (evencomplete identity) between two works will not support infringement unless

there is evidence supporting that the complaining work was available to thealleged infringer

o Gast v. Kaiserman (2d Cir. 1988) even without evidence of access, accesscould be presumed from striking similarity

Evidence must preclude any possibility of independent creationo Repp v. Webber(2d Cir. 1997) striking similarity can furnish circumstantial

proof of access to copyrighted work

When there is enough contrary evidence, it withstands motion for SJ andcreates a triable issue of fact

o Lombardi v. Whitehall XII (SDNY 2010) independent creation is an affirmativedefense and a question of fact

o Ty, Inc. v. GMA Accessories, Inc. (7th Cir. 1997) reinterpreted Selle v. Gibb;allowed to base its proof of access solely on striking similarity so long as there

is no earlier exemplar (public domain) that could have influenced both works

A similarity that is so close as to be highly unlikely to have been an accidentof independent creation is evidence of access

o CBS Broadcasting, Inc. v. ABC(SDNY 2003) "Celebrity" and "Survivor" are bothproducts of combined standard, unprotectable elements of reality shows, etc.

o Price v. Fox Entertainment Group, Inc. (SDNY 2007) dodgeball films


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Immense amount of similarity between the two works The stronger the proof of similarity, the less the proof of access is required" Proof of s' access to 's work:

The speed with which the movie commenced after access The similarity between characters (and that those characters and plot

devices were employed in April, after the alleged access)

The relationships had with people who were close to/working with ,etc. Note: actual access need not be proved

7th Cir/2d Cir Hybrid Ruling (from Ty) Access (and copying) may be inferred whentwo works are so similar to each other and not to anything in the public domain that

it is likely that the creator of the second work copied the first, but the inference can

be rebutted by disproving access or otherwise showing independent creation.

Improper Appropriation taking was impermissible as to kind or amount Ordinary observer would find "substantially similar" Substantial similarity amongprotectable elements keep in mind 102(b) exclusions

As ascertained by ordinary observer (expert testimony is less relevant)o Ordinary Observer Standard (from L. Hand in Peter Pan Fabrics) the observer's

inspection must be more discerning, ignoring those aspects of a work that are

unprotectable in making the comparison

Watch for:o Idea/Expression dichotomy (stock characters, scnes faire)o Common sources in the public domain

o Probative Similarity v. Substantial Similarity Probative used along with access to determine copying ("striking similarity")

Notlimited to protectable elements of the work Only being used to determine copying v. independent creation

Substantial used to determine whether the taking was impermissible Ordinary observer standard Limitedto protectable elements Quantitative and qualitative analysis

o Infringing Copying Ringgold v. BET, Inc. (2d Cir. 1997) deals with the de minimis concept in

Three Instances ofde minimis in o 1) Technical violation that is too trivial to litigate; the "normal" meaningo 2) Falls below the quantitative threshold of substantial similarity

Factual Copying (probative similarity) merely the fact that the infringingwork copies something from the ed work

Actionable Copying (substantial similarity) copying is quantitatively andqualitatively sufficient to support the legal conclusion that infringement has

occurred

Qualitative = the copying of expression Quantitative = the amount of the ed work being copied

o 3) A defense of fair use Not appropriate to discuss de minimis in fair use context, though


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Involves a careful examination of many factors Gottlieb Development v. Paramount Pictures Corp. (SDNY 2008) the inclusion of a ed

pinball machine for three minutes, during which it was obstructed, etc., was de minimis

Peter Pan Fabrics, Inc. v. Martin Weiner Corp. (2d Cir. 1960) Despite the differences in the two fabrics, the ordinary observer, unless set out to

detect the disparities, would be disposed to overlook them and regard their

aesthetic appeal as the same, thus being enough for a claim of infringement Decisions of this kind must be ad hoc because it is such a difficult test to apply

Nichols v. Universal Pictures (2d Cir. 1930) [Jews and Irish play/movie] The generalized level of abstraction at which these works are similar is not

protectable

This relates back to the idea/expression dichotomy; don't want Romeo and Juliet tobe the only star-cross'd lovers

Plays center on characters and sequence of incident, so look there for proof ofplagiarism

o Here, the stories are completely different with the only similarities being: Story involves one Jewish family and one Irish family A quarrel between the fathers Marriage of the children Birth of grandchildren Reconciliation

The court knows that any line drawn will be arbitrary, but that's no excuse to notdraw the line

For the exam: figure out based on the cases where it is best to draw the line, draw it,and argue why you drew it where you did

Sheldon v. MGM (2d Cir. 1936) [Glasgow black widow] s made a movie based off of a novel of a true story about which there was a play wrote the play based on the true story Because of the four sources, need to see which events in the allegedly infringing

movie came from which source

Best argument against striking similarity: common source The movie was found to be infringing because of its striking similarity to many

scenes found only in the play

o Dialogue does not have to be lifted for a play/movie to be pirated as here Be careful of over-dissection

o Can be overly manipulatedo Whole is greater than sum of partso Don't miss the protectable forest for the non-protectable treeso Even Shakespeare broken down would be just words DON'T GO TOO FARo We've seen this before in Roth Cards

Approaches to "Substantial Similarity" Two views to approaching substantial similarity

o 1) Whole of the copied portions ("concept and feel" test) pictorial workso 2) Uncopyrightable elements first removed and THEN the remainder examined

Hand's treatment in Sheldon maybe created a copyrighted compilation from perhapsunprotectable elements


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Boisson v. Banian, Ltd. (2d Cir. 2001) reaffirmed the 2d Circuit's commitment tothe "concept and feel" test

o Breaking down works would ultimately result in no copyright since everything iseventually made up of uncopyrightable elements like letters and colors

Computer Associates International, Inc v. Altai, Inc. (2d Cir. 1992) [OSCAR 3.5] s did not know that their program OSCAR 3.4 was based off of s program

ADAPTER (thanks to Arneys stealing of the source code) Once s found out, they created OSCAR 3.5, with Arney completely out of the

picture

DC found O3.4 to be infringing, but O3.5 not to be; 2d Cir. Affirmed The AbstractionFiltrationComparison Test

o Abstraction divide program at levels of abstraction Broadest i.e., word processor, etc. Structure the modules the program performs (print, save) Code source code and object code

o Filtration remove from consideration all elements of the original program thatare unprotected

Efficiency elements Elements dictated by external factors (scnes faire)

mechanical specifications compatibility requirements design standards industry demands programming practices in the industry

Public domain elementso Comparison protection is only appropriate if after removing all these elements

there is a core element of expression that was copied (the golden nugget)

Also evaluate how important that expression is to the program Steinberg v. Columbia Pictures Industries (SDNY 1987) [New YorkerMoscow Hudson]

There was access (s had a copy of 's poster and were told to copy it) and therewas a substantial similarity

The Right to Prepare Derivative Workso 101 a work based upon one or more preexisting works. 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.

o If the original work is under , the owner of that work has the right to create a derivativework

o House Report No. 94-1976 The right to prepare derivative works has some overlap with reproduction No fixation is required To be considered infringement, the infringing work must incorporate a portion of the

copyrighted work in some form

Detailed commentary on a work or a musical composition inspired by a novel are notnormally considered infringements

o Before applying Substantial Similarity Test, a derivative work must Be based on the copyrighted work; and


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Incorporate a portion of the copyrighted work in some formo Scope of the Derivative Works Right Potentially very broad

Hogan v. Macmillan, Inc. (2d Cir. 1986) [Balanchine ballet photos] s published a book about the history of the Nutcracker and with NYCB's permission

included 60+ photos of the show

s failed to ask for permission, and sued them for copyright infringement, etc. DC found for s, comparing the pictures to someone looking at every 25th note of aBeethoven symphony Held: DC erred; the proper test is one of substantial similarity No need to create the entire choreography from the pictures, if a common observer

were to see them and be able to understand the movements, that is enough

The court does not say this is infringement, just that it is possible that it can be aderivative work

Lee v. A.R.T. Co. (7th Cir. 1997) [repurposed note cards ceramic tiles] claiming these are derivative works because they altered/transformed the works s merely affixed the works to tiles and put a resin over them

Court found this was NOT infringement To find for infringement would mean that tourists infringe when they write on

postcards, etc.

Micro Star v. Formgen Inc. (9th Cir. 1998) [Duke Nukem 3D User-created Levels] Micro Star sold a CD of 300 new levels These new levels included MAP files that describe exactly and precisely the

audiovisual display that is to appear on the computer monitor

9th Circuit Test for Derivative Workso 1) Must exist in a concrete and permanent form

Not mentioned in House Reporto 2) Must substantially incorporate protected material from pre-existing work

The audio-visual displays are probably transitory, so they focus on the MAP files The MAP files also infringe the story created by Formgen

Moral Rightso Visual Artists Rights Act of 1990 106A (Compliance with Berne)

Right of integrity the right to protect against mutilation, distortion Right of attribution/paternity the right to be acknowledged as the author

Positive acknowledgement for a work you've made Negative right not to be acknowledge as the author of a work you haven't made

Term: life of the author (for post-amendment works) May not be transferred, but may be waived in writing

o 101 Work of visual art (1) Painting, drawing, print or sculpture

Single copy Limited edition 200 or fewer; signed and consecutively numbered by author

(2) Photo produced for exhibition purposes Single copy signed by author Limited edition 200 or fewer; signed and consecutively numbered by author

If the work does not fit into either of these two categories, 106A does not apply


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o Work of visual art is NOT Poster, map, globe, etc. Merchandising item, advertising, promotional, packaging material, etc. Works made for hire Works not subject to protection in the US

o Gilliam v. ABC(2d Cir. 1976) [ABC butchered Monty Python] Monty Python had Kwith BBC that reserved to them maximum control over the script

BBC could only make minor changes BBC licensed to Time-Life who licensed to ABC the right to broadcast two MP programs ABC edited out 24 minutes for commercials and offense material The court found that unauthorized editing of the work, if proven, would constitute an

infringement of the , similar to any other use of a work that exceeded the license

The court also found that there was a valid cause of action for the mutilation of theoriginal program

Prelim injunction may issue to prevent repetition of the broadcast prior to finaldetermination of the issues

o Pollara v. Seymour(2d Cir. 2003) [Legal Aid Mural] Pollara created a mural for display at a Legal Aid convention Held: banner fell not covered by VARA due to its promotional and advertising purpose

No matter how artful the banner was, it is still not a work of art Narrow reading of VARA

Concurrence: focuses on the work of a recognized statute Doesn't want to say that a promotional work will neverqualify

The Right to Distributiono 106(3) owner has the right to control the first public distribution of an authorized copy

or phonorecord of his work, whether by sale, gift, loan, or rental or lease arrangement

Any unauthorized public distribution of copies unlawfully made would be infringement.o Columbia Pictures v. Garcia (NDIL 1998) Garcia rented unauthorized copies to clients

Held: even though Garcia didn't make the unauthorized copies, he still infringed thedistribution right by renting them to the public

o Psihoyos v. Liberation, Inc. (SDNY 1997) reproduction of photos occurred in Austria Even so, the distribution of a magazine in the US brought the photographer's US

distribution right into play

o 109(a) First Sale Doctrine Notwithstanding the provisions of 106(3), the owner of a particular copy lawfully

made under this title, or any person authorized by such owner, is entitled, without the

authority of the copyright owner, to sell or otherwise dispose of the possession of that

copy or phonorecord. owner's rights cease with respect to a particular copy once he has parted with

ownership of that copy

o First Sale Requirements Copy was lawfully made with the authorization of the copyright owner; The copy was transferred under the owners authority. The defendant is a lawful owner of the copy in question; The defendants use implicates the distribution right only, not the reproduction right

o Fawcett Publications v. Elliot Publishing Co. (SDNY 1942) [Double Comics]


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was buying comics, adding other comics, and then selling combined double comics The court found that was not reproducing anything

All did was take the copies he bought and resell them There is no derivative work; there's no change, adaption or reproduction

The Importation Right 602(a)o 602(a). Infringing Importation or Exportation of Copies or Phonorecords

(1) Importation into the US, without the authority of the owner of under this title, ofcopies or phonorecords of a work that have been acquired outside the US is an

infringement of the exclusive right to distribute copies or phonorecords under 106,

actionable under 501.

o 501. Infringement of Copyright. (a) Anyone who violates any of the exclusive rights of the owner as provided by

106 through 122, or who imports copies or phonorecords into the US in violation of

602, is an infringer of the copyright.

o Note: The relationship with these rights and the right to distribute are often controversial Often, it is cheaper to import the goods without the owner's authorization and sell them

for less than the authorized US dealer

o Quality King Distributors, Inc. v. L'anza (US 1998) [Fancy Maltese Shampoo?] Classic case of price discrimination QK bought Lanzas cheaper priced products in the EU and then reimported/sold them Held: 602 is subject to the 109 first-sale doctrine/limitation on distribution

This is because 602 refers to 106 which then refers to 109 limitation The protection offered by 602(a) is slightly broader than that offered by 109(a) The language of 501 "OR WHO IMPORTS" causes one to think that 602 and 109

violations are separate from one another

Ginsburg Concurrence: emphasizes that the goods were making a round-trip journey(manufactured in US, sold out to foreign countries, then imported back to US)

No decision re whether goods manufactured abroad would have the same outcome This affects where companies do their manufacturing

o Pearson Educ., Inc. v. Liu (SDNY 2009) [cheap textbooks from abroad] holders filed an action against Liu to stop the importation and resale of the s'

works that had been lawfully manufactured and purchased outside of the US.

First Sale Doctrine Requirements 1) Person invoking doctrine must hold title to a particular copy

o That person must be the owner of the copy 2) The copy must have been "lawfully made under this title"

Two main theories on what constitutes "lawfully made under this title" 1) Made in the US 2) Made lawfully (abroad) using US law as barometer for what's lawful

The courtprefers the broader reading of the second interpretation Look at transaction costs on negotiating licenses they don't change depending on

location of manufacture

HOWEVER, because ofQuality King, the court adopts the first interpretation The court seems to be focusing not on where the books were manufactured but on the

fact that the US rights holder did not authorize the importation into the US


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o Parallel Importation whether or not a good that is lawfully acquired somewhere else canbe imported back into the US

Digital Distributiono Transferring a file online will typically be seen as a violation

Often is seen as a violation of reproduction ( la RAM), and also displayo The first sale doctrine does not apply to digital copies, and the O has declined to endorse

anything such as thato US is a party to the WIPO Copyright Treaties which provide for a making available right

Note: the treaties aren't self-executing, and Congress hasn't yet amended the Act toexplicitly provide a "making available" right

o Elektra Ent. Group v. Barker(SDNY 2008) held that the offering of a work to a group ofpersons for the purpose of further distribution, public performance or public display

constituted distribution under 106(3)

The court accepted that distribution and publication are synonymouso London-Sire Records v. Does (D Mass 2008) court rejected the publication theory, but

found for owner on ground that s, having taken all the steps necessary to make actual

distribution possible, should be deemed to have distributed digital files of recorded works

106(3) is applicable to electronic transfers for the following reasons: 1) No need to limit distribution to require that a material object exists throughout

the entire transaction, as opposed to one where the object is created at its finish

2) The statute is more concerned with the transferee's new ownership, and less sowith whether the transferor retains ownership

Public Performance and Displayo Public Performance/Transmission

101To perform a work means to recite, render, play, dance, or act it, eitherdirectly or by means of any device or process or, in

Documents

Copyright Outline - First Draft