COPYRIGHT OUTLINE – Fall 2011 – Brauneis / Oman

Introduction

Current Legal Framework

  1. Constitutional basis for federal copyright law and the powers of the states
  2. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
  3. Art. I, Sec. 8, Cl. 8
  4. “Science” refers to all knowledge, including philosophy and literature (copyright)
  5. “Art” referred to useful art, or the practice of a trade skill
  6. “A science teaches us to know and an art to do”
  7. The power to secure for limited times to authors the exclusive right to their writings is the basis for copyright law
  8. Copyright is a federal law matter
  9. Federal copyright legislation preempts any state legislation that conflicts with it
  10. Before 1976, federal copyright law did not itself contain any specific directions with regard to preemption, and courts had to determine on general principles whether particular state legislation conflicted with federal copyright law
  11. District courts have original jurisdiction over actions arising under federal copyright law
  12. Copyright Act of 1976
  13. Not retroactive (older material is governed by the 1909 Act)
  14. Replaced the Copyright Act of 1909
  15. Became effective on January 1, 1978
  16. Occupies almost all of title 17 of the U.S.C.
  17. Structure of the act
  18. Subject matter and scope of copyright
  19. Section 101
  20. Statutory glossary (Check here first for term definitions)
  21. Section 102: subject matter of copyright
  22. Section 106: six exclusive rights that constitute what a copyright owner owns
  23. Copyright ownership and transfer
  24. The issue of initial ownership is common
  25. Conveyances of copyright interests
  26. Duration of copyright
  27. Section 301: specifies when federal copyright law preempts state law
  28. Different terms of copyright depending upon the initial owner
  29. Congress has changed the term of copyright many times
  30. Copyright notice, deposit, and registration
  31. Formalities of copyright law
  32. Copyright infringement and remedies
  33. Litigation

Theoretical Frameworks

  1. Instrumentalism and economic analysis
  2. The goal of copyright is not to protect an author’s labor or personality but to further the creation and dissemination of knowledge and culture
  3. SC has used this language: “ultimate aim is . . . to stimulate artistic creativity for the general public good”
  4. Little consensus about substantive standards: what advances knowledge and learning?
  5. Copyright should thus support the production of lots and stuff
  6. The public can then pick and choose what it likes
  7. Conventional economic analysis
  8. Economic incentive to produce tangible goods means that anyone desiring them will have to purchase them from the producer since they are rivalrous and excludable
  9. Works of authorship are non-rivalrous
  10. “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me”
  11. Works of authorship are non-excludable
  12. Similar to fireworks displays in urban settings
  13. No way for the person putting on the show to charge admission to all
  14. Goods that are non-rivalrous and non-excludable are public goods
  15. Lighthouses, government services like defense
  16. A serious problem is created – no one will want to create works since they have no economic incentive
  17. Copyright law creates exclusivity
  18. Deadweight loss: setting a book’s price at $20 means there are those who will not pay, although they would’ve paid something less (the $8 cost price, for example)
  19. Copyright minimalism: costs of granting exclusive rights suggest that we should only grant just enough rights to induce an author to create a work
  20. Copyright maximalism: answer is not to limit rights, but to extend them and to decrease negotiation costs and barriers to rights transfers
  21. Incentives independent of copyright law
  22. In practice, authors may be able to recover initial costs without legal protection
  23. State of the art limitations on copying
  24. Lead time
  25. Has diminished as tech. developments make copying easier
  26. Special-purpose technical restrictors
  27. Social norms
  28. Alternative business models
  29. Government funding and levy systems
  30. Labor and personality theories
  31. Labor: Locke’s theory that the labor of someone’s body belong to him
  32. People should own what they have created with their own hands (or minds)
  33. This approach challenges limited term protection
  34. Personality: Kant and Hegel
  35. Works of authorship should be protected as means of supporting the personal development of authors
  36. Droitsmoraux
  37. Political theory and theories of justice
  38. Tool to protect democracy
  39. Copyright encourages creative expression on a wide array of political, social, and aesthetic issues
  40. Copyright serves to further the democratic character of public discourse
  41. Rawls’ veil of ignorance as applied to authors

The International Context of U.S. Copyright Law

  1. Berne Convention
  2. First major multilateral treaty on copyright
  3. Adopted in 1886
  4. National treatment of foreign authors
  5. Copyright law of each country party to the Convention must treat foreign authors at least as well as domestic ones
  6. Substantive requirements
  7. Included architectural works and photography as literary and artistic works
  8. United States joined in 1989
  9. 1976 Copyright Act removed some obstacles to US membership
  10. Set copyright term at Convention minimum of author’s life plus 50 years
  11. Made clear copyright would not be forfeited for lack of registration or deposit
  12. Berne Convention Implementation Act
  13. Dropped requirement of displaying copyright notice as a condition of copyright
  14. Dropped registration requirement as a condition of filing an infringement suit for foreign nations
  15. Special 301 reports
  16. Place countries on watch lists for deficiencies in their enforcement of IP rights
  17. NAFTA and TRIPS
  18. Linkage of IP issues and international trade
  19. One of the major emphases of TRIPS is enforcement
  1. Free trade agreements
  2. Bilateral agreements
  3. Reaching consensus in multilateral fora proved difficult
  4. Typically oblige parties to join a variety of existing multilateral copyright and IP treaties

Basic Hurdles of Copyright Protection

Fixation

  1. Basic requirement
  2. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device (17 U.S.C. 102)(a))
  3. Copyright attaches as soon as work is fixed
  4. As soon as author puts down the pen or painter puts down the brush
  5. Reasons for fixation
  6. Evidentiary problem with a lack of fixation
  7. Without a fixed work, have to depend on the testimony of litigants
  8. Aid to dissemination and preservation
  9. Goes towards the idea of "promoting the progress of science"
  10. Better promoted if it is written down and easily transported around the world
  11. Provides stable notice about what rights are being claimed
  12. Acts as a fence marking the author’s intellectual territory
  13. Kind of formality that serves as an (imperfect) proxy about how serious you are about this work adherence
  14. If you weren't serious enough to write it down, perhaps it would've arisen in conversation anyway and so there is no need for protection
  15. Definition of fixation
  16. A work is "fixed" in a tangible medium of expression when its 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 (17 U.S.C. 101)
  17. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission(17 U.S.C. 101)
  18. A work can be fixed if it is recorded at the same time that it is being performed
  19. Works must be embodied in a copy or phonorecord
  20. “Copies” are 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 (17 U.S.C. 101)
  21. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed
  22. Copy: printed book, file on a hard drive, handwritten manuscript, or a film of someone reciting the novel
  23. Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device (17 U.S.C. 101)
  24. The term “phonorecords” includes the material object in which the sounds are first fixed.
  25. Phonorecord: tape, MP3 file
  26. Fritz v. Arthur D. Little, Inc.
  27. “Original words spoken aloud can be copied and independently copyrighted by all, if they have not previously been fixed in a tangible medium of expression”
  28. Oral tradition and the fixation requirement
  29. Recovering collectivity: what rights do indigenous groups have to IP when their tradition is oral?
  30. Lifvon and Enigma
  31. 18 U.S.C. 2319(a): Lifvon never wrote down his songs
  32. People do not distribute bootleg tapes of written words
  33. Concerts, not poetry, are popular
  34. “Sufficiently stable”
  35. Definition of “a period of more than transitory duration”
  36. Cartoon Network v. CSC Holdings
  37. Strictly speaking, what has to last for a sufficiently long period is not the copy, but the perception, reproduction, or communication of that copy
  38. Situation of classroom note-taking
  39. Student taking down notes - getting the information from the professor orally
  40. Not from the video tape camera, which was independently recording
  41. Can't say that the notes were fixed before the camera - were fixed concurrently
  42. Student's notes thus shouldn't amount to an infringement of a fixed work
  43. Copy” vs. “copyright”
  44. The noun copy concerns fixed embodiments of works
  45. The verb to copy concerns the lack of independent creation of a work
  46. Protection against unauthorized fixation
  47. 102(a) does not extend protection to unfixed works, but state statutes or common law may provide greater protection, and 1101(d) explicitly states 1101 does not preempt state law
  48. 1101 extends protection to a limited class of unfixed works
  49. United States v. Martignon
  50. Fixation and interactive devices
  51. 102(a) confirms that a work can be fixed on magnetic tape, in flash memory, or in some other medium that needs to be processed by a computer/device before the work is perceived by human beings
  52. Williams Electronics, Inc. v. Artic International, Inc.
  53. Live performances
  54. A live performance is not “fixed” if it’s not transmitted
  55. Therefore, if an improv piece is not recorded, it has no copyright
  56. §1101: Anti-Bootlegging Provision: special rule that says that live music performances receive special protection
  57. Prohibits 3 things without performers’ consent:
  58. Cannot fix the sounds of a live musical performance in a copy or phonorecord, or to reproduce copies
  59. Cannot transmit or communicate to public sounds or images of live musical performance
  60. Cannot distribute, sell, rent, offer or traffic in any copy or phonorecord described in (a)(1)
  61. Argument against §1101(1) and (2)
  62. Does not fix the rights for a limited period of time, which may violate the Copyright Clause
  63. Constitution refers to "writings of an author"
  64. Is a musical performance that is not fixed a Constitutional "writing"?

Originality

  1. Basic requirement
  2. Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device (17 U.S.C. 102)(a))
  3. Works that lack originality are not protected by copyright and nonoriginal elements of a work are not protected
  4. Copyright protection does not extend to every element of the copyrighted work, only to those that are original
  5. “Original” means only that the work was independently created by the author and possesses at least some minimal degree of creativity
  6. Originality has two requirements (Feist standard)
  7. Independent work of authorship
  8. The work has to be made from scratch
  9. Does not require novelty
  10. Different than patent law, where the standard is “not have been obvious a the time the invention was made to a person having ordinary skill”
  11. Can merely be an independent creation of a similar entity
  12. If two identical works are created independently, each author would be entitled to his own copyright
  13. The work does not have to be unique or different from preceding works
  14. “Similarity to prior works will not, in and of itself, affect the validity of a particular work’s copyright”
  15. Cannot be a complete copy of another’s work
  16. Can be a derivative work
  17. Element of creativity
  18. Extremely low, but not de minimis
  19. De minimis doctrine: de minimis creativity does not count as original creativity
  20. A work need not be completely original or even mainly original
  21. The originality analysis considers not how much was copied from others, but whether the author added anything creative
  22. Must be more than a form of expression dictated solely by functional considerations
  23. Words, phrases, titles, slogans, mere variations of typographic ornamentation lettering or coloring, mere listing of ingredients/contents don’t have copyright protection
  24. Bleistein v. Donaldson Lithographing Company
  25. Advertisements are protected by copyright
  26. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits”
  27. Sweat of the brow
  28. Not protected by copyright
  29. Cannot win protection by showing an investment of considerable resources (energy and labor is not enough)
  30. Feist:the work that went into gathering the information for thousands of telephone listings does not qualify the phonebooks for copyright protection
  31. Alphabetical arrangement is not original
  32. Prunté v. Universal Music Group
  33. Short words and phrases are not protected by copyright
  34. Lack creativity
  35. Photographs can be original
  36. A photograph derives its originality in three ways:
  37. Rendition: (light, angle, exposure, filters, developing techniques)
  38. Timing: (being at right place at right time)
  39. Creation of Subject: (the subject of a photo can be protected if the photographer created the scene or subject to be photographed.
  40. Mannion v. Coors Brewing Co.
  41. Mannion, a photographer is suing Coors for infringement of Mannion's photo of a famous basketball star
  1. Derivative works
  2. A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” (17 U.S.C. 101)
  3. An author may start with a pre-existing work and either add new material or modify the old material so as to produce something which is entitled to its own independent copyright
  4. These second generation works are known as derivative works
  5. A second generation author is entitled to copyright only in her changes or additions
  6. Not in any elements that were present in the pre-existing work
  7. Owner of copyright in the prior work
  8. If that owner has not given permission to create the derivative work, the second generation author is subject to liability for having infringed copyright in the prior work and ALSO
  9. Forfeits copyright in his own creative contributions to any part of the derivative work that uses the prior work
  10. Pattern of Cases:
  11. Work A (the original work)
  12. Party A is usually not involved in lawsuit
  13. Work B (purported derivative work)
  14. Made under a license if Work A is copyrighted and as a copy of public domain work if Work A is in the public domain
  15. Work C (allegedly infringing of Work B)
  16. Contends that Work B is insufficiently original
  17. Batlin & Son, Inc. v. Snyder
  18. Pre-dates Feist
  19. For a derivative work to be copyrightable there must be some substantial difference, not merely trivial originality
  20. Snyder created an Uncle Sam bank and claimed Batlin’s Uncle Sam bank was an infringement, although Snyder has no valid copyright because Uncle Sam is in public domain and Snyder didn’t make any changes that were noticeable to the casual observer
  21. Endorses higher standard than normal
  22. Circuit split in how much variation is needed.
  23. Higher originality standard would leave more in the public domain.
  24. Collective works
  25. Both collective works and derivative works use prior works in ways that infringe copyright in those prior works absent permission, unless those works are already in the public domain
  26. A collective work merely gathers a number of prior works and presents them as a collection
  27. A derivative work changes or transforms the prior work in some way
  28. All collective works are compilations
  29. Compilations also covers works that gather and organize non-copyrighted material
  30. Scenes a faire
  31. Stock characters and settings that are indispensable are not copyrightable
  32. Lack originality as they are already in public domain
  33. Damsel in distress, knight in shining armor, haunted house, etc.

Fundamental Exceptions to Copyright Protection

  1. The fact that a work as a whole is fixed and original and thus protected by copyright law does not mean that each and every component of that work is entitled to protection
  2. 102(b) explicitly itemizes the aspects of a copyrighted work that are not covered by the exclusive rights granted under the law
  3. Idea, procedure, process, system, method of operation, concept, principle, and discovery

Facts and Compilations

  1. FeistPublications, Inc. v. Rural Tel. Service Co.
  2. Concerned the extent of copyright protection in Rural Telephone’s telephone directory white pages listing

i.The raw data was not original to Rural, who listed the names in alphabetical order

  1. This arrangement failed to show even the “minimal creativity” required for protection
  1. Facts are not copyrightable

i.Compilations (databases, maps, almanacs) may be if the selection, coordination, or arrangement of facts reflects creativity

  1. Work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship; term includes collective works (17 U.S.C. 101)

i.To be protectable compilation, the resulting work must be more valuable to the consumer than the sum of its parts