Intellectual Property with Dale Carlson
Outline Fall 2016
COPYRIGHTS
Acquiring Copyrights
Requirements for Copyright Protection
Copyright protection arises automatically so long as a given “work of authorship” meets three broad criteria: (1) the work must be original, (2) it must be fixed in some tangible form, and (3) it must consist of “expression” rather than “ideas.”
Originality and Authorship
“Creative powers of the mind”
Bleistein v. Donaldson Lithographing Co.
Courier Lithographing (represented by Bleistein), produced a number of posters (aka chromolithographs) advertising a circus. Later, the circus needed more prints made, but instead of going back to Courier, they went to a cheaper competitor, Donaldson, who copied the posters. Bleistein sued for copyright infringement.
Donaldson argued that copyright protection should only be extended to 'fine arts' not to advertising or other 'commercial arts'.
The US Supreme Court found that illustrators are creators, even when they are drawing images of real people.
The Court noted that when making a reproduction of something from real life (like a person or a landscape), other artists are “free to copy the original, but they are not free to copy the copy.”
The Court found that illustrations used for commercial purposes are still copyrightable.
The Court issued a warning that judges were not to evaluate the artist or aesthetic merit of art when determining whether or not is should be covered by copyright law – now known as the Bleistein Nondiscrimination Principle.
First Publications v. Rural Telephone Service
Court held that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. The Court reasoned that Rural's white pages did not satisfy the minimum constitutional standards for copyright protection because the information they contained lacked the requisite originality, as Rural had not selected, coordinated, or arranged the uncopyrightable facts in any original way.
Meshwerks v. Toyota Motor Sales
Copyrights award originality, not effort. Models of the cars are not copyrightable.
Models “express” no more than the depiction of the vehicles as vehicles, which were the designs of Toyota.
Fixation
The creative work must be fixed in a tangible medium of expression – without a physical copy (i.e., the original work) there can be no copyright.
Williams Electronics v. Artic International
Even though videogame “moves” and is not fixed, it’s still copyrightable. The videogame fixation is in the computer coding.
Expression
Copyright protection is limited to the “expression” the work contains. Other material, such as “ideas” and “facts,” must be distinguished and reserved in the public domain.
Facts and ideas cannot be possessed by a single person
Baker v. Selden
Classic case on “Idea Expression Dichotomy”
Selden copyrighted a book in which he explained his system of bookkeeping with forms that helped to put the system to use. Baker sold forms with columns and headings arranged differently to achieve the same result.
Court says: copyright protection does not extend to the use of the system or the forms, just the author’s unique explanation of it.
Nash v. CBS
Learned Hand’s Abstraction Test: idea versus expression
When materials are presented as facts they are not copyrightable.
Limitations on Copyrightability
Merger Doctrine/Scènes à faire:
Merger: when the expression and underlying idea merge, then the work is not protectable from infringement. The court has to look at if author had any meaningful choice in deciding how to express a particular idea – courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way (don’t want to create a monopoly on the idea).
Scènes à faire: reflects the notion that certain ideas can be expressed in only a limited number of ways, but it locates that limitation not in the inherent character of the idea, but in the expectations of the audience as to certain expressive forms – certain elements of a creative work are not protected when they are mandated or customary to the genre.
CCC v. Maclean Hunter Market Reports
The selection and arrangement of data in the Red Book displayed amply sufficient originality to pass the low threshold requirement to earn copyright protection
Compilation is a work formed by the collection and ass
copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
Estate of Martin Luther King, Jr. v. CBS
King’s speech was protected because it was a limited publication.
Ownership
Collaboration and Joint Works
Aalmuhammed v. Lee
Malcolm X movie case – Aalmuhammed sought a declaratory judgment that he was the co-author to the copyright in a movie and was entitled to profits therefrom
A person claiming to be a co-owner or author of a joint work has the burden of proving that both parties intended the work to be a joint work
Therefore, this was NOT a joint work
Court looks to the apportionment of decision-making authority and the billing accorded various parties.
None of the parties made any objective manifestations of intent to be co-authors
Specifically, Aalmuhammed had no supervisory authority over the film and signed a work for hire agreement that prevented him from being a co-author
Works Made for Hire
Community for Creative Non-Violence v. Reid
Reid made a sculpture on commission from the CCNV and contended that since he had not been employed by it under common law agency principles he owned the copyright of the sculpture
Under common law agency principles, one who creates an artwork at the directive of another retains copyright upon it unless that other had employed the artist.
Reid was NOT employed by the CCNV so he owns the copyright.
Duration, Renewal, Transfers, and Termination
Duration of a Copyright: 70 years plus the author’s lifetime
