Article 1, Section 8, Clause 8: The congress shall have power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respect writings.

Policy

  1. Incentive Theory: incentivise authors to create in order that all society can prosper – balance the economic rights of the author with the common good
  2. Moral Rights: authors have the right to protect the integrity of their work, claim authorship, and control the distribution of their work.

Copyright Acts

1909 Act: (1) unpublished works = state CL copyright of perpetual duration; (2) published works = federal copyright protect from time of publication NOT time of registration; (3) initial term of 28 years + renewal terms = 56 years max; (4) strict formalities [registration & notice = mandatory for protection].

1976 Act [eff. date: 01/28/78]:

  1. Federal copyright = moment fixed in tangible medium [state CL copyright eliminated]
  2. Life of author + 50 years
  3. Author may terminated transfers after 35 years [transferee may continue to exploit derivative works made und the transfer before it expired]
  4. Fair use privilege instated
  5. Ownership of copyright divisible – can split up rights
  6. Compulsory licenses
  7. Formalities: notice, recordation, deposit and registration

  1. Threshold Q:
  2. Non-copyrightable Material
  3. US Gov’t Works: Works prepared by the U.S. government employees in the course of their employment – does not apply to state/local governments BUT U.S. gov’t can receive and hold copyrights transferred to it by assignment, bequest, etc. [105]
  4. Fonts/typefaces
  5. Titles/short phrases
  6. Blank forms: COR 202.1(c): Blank forms are not copyrightable. Blank form does not "communicate" anything. Copyright is not designed to protect things utilitarian in nature. [Baker]
  7. EXCEPTION: Computer software: has utilitarian use and blank form BUT copyrightable - underlying code. [Bibbero, c.f. ABR Benefits]
  8. Is there a valid copyright?
  9. Copyright = (1) work of authorship, (2) original AND (3) fixed in tangible medium [102(a)]
  10. Works of Authorship [102(a)(1) – (8): NOT an exclusive list]
  11. Literary works
  12. Musical works, including any accompanying words
  13. Dramatic works, including any accompanying music
  14. Pantomimes and choreographic works
  15. Pictorial, graphic, and sculptural works
  16. Motion pictures and other audiovisual works
  17. Sound recordings
  18. Architectural works
  19. + Derivative work [103]
  20. Who owns the copyright AND is the copyright owner bringing suit?
  21. WMFH
  22. Joint Works
  23. Transfers
  24. Are formalities required AND perfected?
  25. Notice [publication]
  26. Deposit
  27. Registration
  28. Is the copyright sill valid?
  29. Duration
  30. Renewal
  31. Transfer Termination
  32. Restoration of Foreign Works
  33. Did infringement occur?
  34. Reproduction
  35. Compulsory/Mechanical Licenses
  36. Secondary transmissions by cable TV systems [111]
  37. Digital transmission/distribution of sound recordings [114 & 115]
  38. Mechanical license: distro of phonorecords of non-dramatic musical works [115]
  39. Public broadcasting by non-commercial entities [118]
  40. Satellite transmissions [119]
  41. ISP Secondary Liability
  42. Derivative Works
  43. Distribution/Right to Vend
  44. Digital Distribution Rights
  45. Importation
  46. Derivative Works
  47. Performance/Display
  48. Sound Recordings/Digital Audio Transmission Rights
  49. Visual Arts Right Act – Moral Rights
  50. Circumvention of Copyright Protections
  51. Copyright Management Info
  52. Vicarious Liability/Contributory Infringement
  53. Does a defense apply?
  54. Independent creation
  55. De Minimus
  56. Fair use

Literary Works [102(a)(1)]

  • Literary works = works expressed in words, numbers, or other verbal or numerical symbols, regardless of object in which they are embodied [e.g. books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, etc.]
  • NOT audio visual works. [101]

  1. Is the work original?
  2. Independent creation

  • Free to copy the original subject matter NOT free to copy the copy. Copy = another author’s work. Holmes, Bliestien.
  • Free to copy facts: NOT copyrightable because: (1) Doctrinally: facts are NOT original - discovered NOT created AND (2) Policy: facts are building blocks - used by other in future advances [Feist]
  • NOTE: Only new work/elements [created from scratch] is protected [see derivative works] [Feist]
  • Thin Copyright: When something is moderately creative/moderately original then it gets a smaller amount of protection. Only the small part that is original/creative is protected and infringement only occurs when copied verbatim. [Continental Casualty]

  1. Minimal creativity See: Magic Marketing, Tin Pan Apple, Swirskey, Sabastian, Burrow-Giles, Bleistein

  • Very low standard – only need some creative spark no matter how crude, humble or obvious [Feist] BUT generic things do NOT count
  • Amount of time spent creating work is irrelevant [Rockford Map Pub.]
  • PQs: Does keeping the work in the public domain outweigh the incentive to future authors? Is the work so generic that a trap for all future authors would be created?

  1. Does the creativity take the form solely of an idea, procedure, process, system, method of operation, concept, principle, or discovery? [102(b)]

  • Idea/Expression Dichotomy: Ideas NOT protected because: (1) stymies rather than promotes progress; (2) patents cover ideas; AND (3) poses serious 1st Amendment concerns – others not allowed to freely, openly discuss. Applies to “building block ideas”: those needed by others in order to continue to create works.
  • Abstractions Test: More general/abstract expressions = ideas BUT more detailed/specific = expression [Nichols]
  • Utilitarian: If a work is utilitarian (teaches us how to do something/instructions) people are free to follow the instructions/practice the utilitarian art w/out fear of infringement (e.g. book on dancing, how to use an acct. system…)
  • Blank Form Rule: COR 202.1(c): Blank forms are not copyrightable. Blank form does not "communicate" anything. Copyright is not designed to protect things utilitarian in nature. EXCEPTION: Computer software: has utilitarian use and blank form BUT copyrightable - underlying code. [Bibbero, c.f. ABR Benefits]

  1. Is the expression closely intertwined w/the underlying ideas – is there a limited no. of ways to express the underlying ideas?
  2. May NOT be copyrightable under Merger Doctrine

  • Merger Doctrine: When the idea being expressed merges w/the expression because the idea can only be expressed in a limited # of ways; prevent others from using the building blocks. BUT if ideas are infused w/ taste and opinion and not “building block ideas” then Merger Doctrine does NOT apply. [CCC]
  • ALWAYS Consider Policy: can't copyright if it would limit a narrow area that would be quickly exhausted. [Morrissey, Herbert Rosenthal, Nichols, c.f. Educational Test Services, Nichols]

  1. Fictional Characters
  2. Is the character sufficiently delineated to warrant independent protection? [Nicholas] OR Does the character effectively embody the story being told? [Warner Bros. v. CBS] [See also Anderson, MGM v. Honda, Gaiman]

NOT copyrightable: Stock character, cliché, etc. - one that if copyrighted would make creating new works very hard or impossible. [Gaiman]. Characterizations - not usually copyrightable: e.g. Mary Catherine Gallagher, Coneheads, Church Lady - SNL character
  1. Non-fiction OR factual narrative

Copyright protection extends only to the actual words chosen and structure of the non-fiction work NOT the underlying facts or theories – type of derivative work [Nash]
  1. Computer program

Computer program = a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. [101]
  1. Is the owner claiming copyright in the code OR structure, sequence and organization of the code [SSO]?
  2. Is there copyrightable expression per CAI test?

CAI Test: (1) break down the allegedly infringing program into its constituent structural parts, (2) examine parts to shift out ideas, incidental expression and elements taken from public domain - remaining = copyrightable expression, (3) compare copyrightable expression w/alleged infringing work. [Computer Associates Int’l v. Altai]
  1. Is the owner claiming copyright in the user interface?
  2. Are the interface elements necessary to operate the program – e.g. command menu [Lotus v. Borland]
  3. Y – Not copyrightable
  4. N – Maybe copyrightable if solely creative/non-essentialelements [like paperclip assistant]…
  1. Fixed in tangible medium [102]

  • Fixed = (1) tangible medium existing now or later AND (2) can be perceived, reproduced, or otherwise communicated either directly or w/aid of machine (3) for more than a transitory period.
  • Computer RAM = fixed

  1. Is it a live performance that is (1) being transmitted AND (2) simultaneously recorded by the author?

No copyright in recording by someone other than author so no protection under CA 1976 – see state CL. If live musical performance, see TRIPs
  1. Y - Copyrightable
  2. N – then unfixed and NOT copyrightable under CA 1976

Unfixed = protected by state CL. TRIPs [anti-bootlegging statute]: if live musical performance illegal to (1) fix/reproduce; (2) transmit/communicate to the public; (3) distribute/sell/rent/or offer without permission. No time limit and retroactive. [Constitutional under Commerce Clause: see Moghadam, Martignon, Kiss Catalog]
  1. Cases
  2. Originality
  3. Magic Marketing v. Mailing Servs. of Pittsburgh (WD PA 1986): P’s envelopes which depicted lines and instructions are not sufficiently original. Originality is key requirement and names, titles, slogans, familiar symbols or designs, variations of typographic ornamentation are NOT copyrightable. Pictorial, graphic or sculptural works are protected because they req. creativity.
  4. Tin Pan Apple – crt declined to hold that words “Hugga-hugga” in rap song lacked creativity to merit ©
  5. Swirskey v. Carey – crt held 7-note sequence from “He’s a Jolly Good Fellow” in Mariah Carey intro met the min. creativity req. to warrant submitting the issue of originality to jury
  6. Sebastian Int’l v. Consumer Contact (DNJ 1987): P’s labels are sufficiently copyrightable because the manifested min. creativity – more than a list of directions [whole paragraph w/instructions, etc.]. But, catch phrases, mottos, slogans NOT copyrightable.
  7. Burrow-Giles Lithographic Co. v. Sarony (SCt 1884): D copied P’s photo of Oscar Wilde and claimed that (1) photos are not writings under the Copyright Act and (2) photos are not creative. Photographs are “writings” under the Copyright Clause – drafters included texts as well as maps, charts, etc. Has always been interpreted broadly. Taking a picture is more than just pushing the button, requires creativity through settings, poses, etc.
  8. Bleistein v. Donaldson Lithographing Co. (SCt 1903): Irrelevant if “writing” is an ad or of low quality – judges should NOT be the judge [principle of nondiscrimination] – as long as it appeals to someone.
  9. Creativity: Facts
  10. Feist Publications v. Rural Telephone Service, SCt, 1991: Eliminated “sweat of the brow” tests. Facts are NOT copyrightable because: (1) Doctrinally: facts are NOT original - discovered NOT created AND (2) Policy: facts are building blocks - used by other in future advances. Compilations are copyrightable IF (1) the work was independently created by the author AND (2) it possesses at least some minimal degree of creativity. Originality is a constitutionally mandated prereq for copyright protection under the Copyright Clause. Factual compilations possess the requisite originality when (1) the author chooses the facts to include and (2) arranges them in the order in which they appear so they are the most useful to the reader. Compiler may select/arrange the facts in the same way as another - novelty is NOT a requirement. BUT, the author must make the selection/arrangement independently and display some minimal level of creativity. The mere fact that a work is copyrighted, however, dos not mean every element of the work is protected - copyright protection only extends to those components of a work that are original to the author.
  11. Test: A compilation is copyrightable if: (1) It consists of the collection and assembly of preexisting material, facts or data AND (2) The author selected, coordinated, or arranged those materials AND
  12. The creation, by virtue of the particular selection, coordination or arrangement, constitute an "original" work of authorship. H4: Rural's phone directory has a valid copyright, however, the facts (names/addresses) are not copyrightable. Question: did Rural arrange the facts in an original manner and meet minimal creativity element? No; arranging names, towns and telephone numbers alphabetically lacks even the de minimus creatively required. Feist did not infringe by copying those facts.
  13. Time/effort Expended
  14. Rockford Map Publishers v. Directory Service, 7th Cir, 1985: The amount of time/effort expended is irrelevant to whether a work is copyrightable. Copyright law protects the new original work regardless of expended effort.
  15. Thin Copyright
  16. Continental Casualty v. Beardsley (2d Cir. 1958): Insurance company had forms w/technical language to explain their insurance policy – said D infringed by copying. Form protected under © BUT thin copyright. So thin copyright to protect that “only the exact rendition of the precise wording employed by the © owner” = infringement
  17. Fixed
  18. Maghadam: Congress has the power under the Commerce Clause to protect “unfixed” works that are ineligible for copyright protection
  19. Martignon; Antibootlegging statute unconstitutional b/c it directly violates the Constitutional Copyright Clause’s fixation & durational restrictions. “If-copyright-like, then-all-copyright-clause-constraints-apply” and Congress’ power is only as broad as the Copyright Clause.
  20. KISS Catalog v. Passport Int’l Prods.: Congress has Commerce Clause power to protect unfixed performances & exercise of this power does NOT conflict w/the Copyright Clause. (“if-not-constitutionally-copyrightable, then-no-copyright-clause-constraints-apply”)

  1. Ideas v. Expression
  2. Baker v. Seldon: Seldon wrote a book about an accounting scheme and included forms to use when practicing his accounting method. Idea/Expression Dichotomy: Copyright does not extend to "systems" because it is meant to protect expressions NOT ideas [codified in R102(b)]. Utilitarian: If a work is utilitarian (teaches us how to do something/instructions) people are free to follow the instructions/practice the utilitarian art w/out fear of infringement (e.g. book on dancing, how to use an acct. system…)If using Seldon's form (his expression) is the only way to practice the utilitarian art, then the form (expression) belongs to public domain
  3. Nichols v. Universal Pictures, 2d Cir, 1930: When trying to decide if infringement has occurred in a play, one must determine where to draw the line between expression and what is expressed. Although both plays were about a Jewish family and an Irish Catholic family and the marriage of their children against their parent's wishes - this plot or idea is where the real similarities end. The P cannot copyright such a broad plot, which is no more than an idea for a story. The P's copyright lies in the expression of how this relationship plays out and the D's expression of the relationships, etc. were different enough that he did not infringe.
  4. Merger Doctrine
  5. Morrisy v. Procter & Gamble: P had sweepstake instructions and sued D for copying the instructions. Instructions not protected under copyright. The idea can only be expressed in a certain amount of ways, so cannot copyright that limited "expression"
  6. Herbert Rosenthal Jewelry v. Kalpakian, 9th Cir, 1971: P contends that the D infringed its copyright of a jewel encrusted bee pin when it designed and started selling its own version. The idea of a bee pin, however, cannot be copyrighted - only the P's particular expression of the pin is protected. In this case, however, because both the P and D are copying from nature, the P's idea and expression are virtually the same thing, but because they cannot own the copyright to a pin based on a bee, their expression cannot be protected by copyright. [Merger Doctrine]
  7. Educational Testing Services v. Katzman, 3d Cir, 1986: ETS's exams were copyrightable and were not mere ideas. Additionally, there were sufficiently numerous ways to right the exam questions that the Merger Doctrine did not apply. The D was found to have infringed on those questions that were so similar that they lead to the conclusion that that they were copied. However, the Ps contention that other questions used by the D with the same structure are also infringement is too broad. The P's copyright does not preclude a coaching school from testing the same concept in the same order, as long as it does not use the same or substantially similar language.
  8. Blank Form Rule
  9. Bibbero Systems v. Colwell Systems (9th Cir. 1990): P created med forms to help drs fill out evals that were personalized to them & their practice – said Ds copied it. Blank form not protected by © – bright line rule
  10. ABR Benefits Serv. v. NCO Group (ED PA 1999): Blank forms can be © if sufficiently innovative that their arrangement of info is itself informative. Says Baker is to be interpreted narrowly – case by case*
  11. Fictional Characters
  12. Nicholas v. Universal Pictures, 2d Cir, 1930: H: Fictional characters are copyrightable to the extent that they are well defined "expressions" of the author. The more unique and defined, the more copyrightable that they are.
  13. Warner Bros. Pictures v. CBS, 9th Cir, 1954:H: The story told through the characters are copyrightable, but the individual characters are not. If the character essentially "constitutes the story being told" then h/s is copyrightable.
  14. Anderson v. Stallone, C.D. Cal. 1989: H: The Rocky character is copyrightable because he is a well defined [fully/specifically delineated] and essential character to the previous movies [Nicholas] AND essentially "constitutes the story being told." [Warner Bros. v. CBS]. Story is about the character - w/out the character there is no story.
  15. MGM v. American Honda Motor Co., C.D. Cal. 1995: H: Honda commercial depicting a James Bond like chase scene infringed on MGM's copyright of the James Bond character - JB was highly delineated [Nicholas] and essentially "constituted the story being told." [Warner v. CBS]
  16. Gaiman v. McFarlane, 7th Cir., 2004: H: If a character is distinct - easily differentiated from other characters - then h/s is copyrightable. It is irrelevant if the character was based on a "scenes a faire" because inadvertent infringement is no longer an issue - another will know exactly when they have infringed if the character is distinct.
  17. Non-fiction/Factual Narratives
  18. Nash v. CBS, 7th Cir, 1990: Historical facts (Explanatory Hypothesis/Historical Theory) are not copyrightable, but the arrangement of those facts maybe. Nash's book is protected, but his statement of historical fact is not. CBS's The Dillinger Print does not borrow any of Nash's presentation of the facts contained in his book, just uses the facts presented in a setting of its own invention. No infringement because CBS uses Nash's analysis of history but none of his expression.
  19. NOTE: Nash should have argued that his theory was a compilation of historical facts

Musical Works [102(a)(2)]