Copyright Outline

Copyrights Outline
 
Sources of IP law:
Constitution
Art. I, § 8, Cl. 8: to promote science, Congress can provide to writers, inventors, etc. the exclusive right to their writings for a limited period of a time.
Legislative: 
CR Act of 1976
Took effect January 1, 1978
CR Act of 1909
Common law
But only until 1976, when the federal gov’t preempted the state with the CR Act.
The 1976 Act did not supercede the 1909 Act:
For writings created prior to Jan. 1, 1978, the 1909 Act governs.
The Act that was in place when the work was created is the Act that governs.
i.e.: Mickey Mouse is governed by the 1909 Act since he was created prior to 1978.
Primary beneficiary of Copyright law is the public.
Misappropriation:
Elements:
Δ’s use of π’s identity;
The appropriation of π’s name or likeness to Δ’s advantage;
Lack of consent; and
Resulting injury
No cause of action for misappropriation will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of press to tell it.
Public figures do not retain the right of publicity against the use of name and likeness in the news media (Joe Montana posters).
A person’s photograph originally published in one issue of a periodical may be republished in another medium as an advertisement for the periodical itself.
Posters contained no additional information not included on the newspaper pages themselves.
Right of publicity:
Where the work in question does not add significant creative elements and is not transformed into something more than a mere celebrity likeness or imitation, the work will not be protected by the 1st Am. (Saderup – 3 Stooges shirts).
Entertainment that is merely a copy or imitation, even if skillfully and accurately carried out, does not really have its own creative component and does not have a significant value as pure entertainment.
When the value of the work comes principally from some source other than the fame of the celebrity – from the creativity, skill, and reputation of the artist – it may be presumed that sufficient transformative elements are present to warrant 1st Am. protection.
An artist depicting a celebrity must contribute something more than a merely trivial variation, but must create something recognizably his own, in order to qualify for legal protection.
Distinction btwn endorsement of person v. mere identification:
Usually, identification is enough to violate the right of publicity.
 
Chapter 2: Prerequisites For Copyright Protection:
Two fundamental prerequisites for CR protection:
Originality
Fixation
§ 102: Subject Matter of CR:
(a) CR protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or wit the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works
(b) In no case does CR 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.
 
§ 2.01 Fixation:
A. Introduction:
“Writing” = any physical rendering of the fruits of the author’s creativity.
A work is incapable of protection under federal law unless it is “fixed” in a tangible medium of expression.
Definitions (§101):
Fixed: when a work’s 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. A word consisting of sounds and/or images that are being transmitted, is “fixed” if a fixation of the work is being made simultaneously with its transmission.
The content of a live transmission should be accorded statutory protection if it is being recorded simultaneously with its transmission.
Copies: material objects, other than phonorecords, in which a work is fixed by any method now know or later developed, and from which the work can be perceived, etc.
Concept of fixation is important since it not only determines whether the provisions of the statute apply to a work, but it also represents the dividing line btwn common law and statutory protection.
“Copies” and “Phonorecords” together will comprise all of the material objects in which CRable works are capable of being fixed.
 
B. Development of Current Law:
Elements of a copy:
Readability
Intention
Visually Perceptible 
Notion of fixation:
Tangibility
Facility of transferring property
Boundary setting
Evidentiary basis
Reduction to a tangible medium is when the work becomes protected (§102).
Fixation attaches at publication of a copy.
Two threshold questions:
Whether the claimed work is covered by the statute and can be covered within the perimeter of the Constitution
Whether the particular claimant has done all that is necessary to secure that protection.
The fixation requirement does not require that the work be written down or recorded somewhere exactly as it is perceived by the human eye. (Midway v. Artic – Pacman games).
All that is necessary is that the work