Copyright Law – Prof. Goodman – Fall 2012
Chapter 1: Introduction to Copyright
I. Constitutional Basis for Federal Copyright Law
a. The Copyright and Patent Clause-
i. Article I- §8:8 – “That 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 respective Writings and Discoveries . . .”
ii. “Science” “Authors” and “Writings” all apply to Copyright Law
II. Theories of Copyright Law
a. Incentive Theory
i. Principal theory in US copyright law
ii. Utilitarian; Provides authors an incentive to create their work; society wants to reward and encourage people to provide knowledge and culture
iii. Reward for work is going to be what the market deems it’s value
b. Personality Theory
i. Works of authorship should be protected because they are extensions of the personalities of their authors
c. Labor Theory
i. If I own my labor, no one has permission to take it without my permission
ii. Each person has a right to what she created with her own labor
iii. Explicitly rejected in American Copyright
d. Limited Time
i. Exclusive Rights for limited times
ii. Really after knowledge… Quid pro Quo
1. Notion that this isn’t a natural right- but it’s gov’t created rights
III. Nonrivalrous v. Nonexclusive
a. Non-Rivalrous- We can all use it, and it does not diminish utility to the next person; works of authorship
b. Non-Excludable- Hard to prevent someone from using your work
*works that are non-rivalrous and non-excludable are “public goods”
IV. Copyright
a. Generally
i. A legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time.
ii. The Copyright Act occupies almost all of title 17 of the U.S.C.
b. Static Efficiency- Concerns the allocation of a fixed limited supply of a resource.
c. Dynamic Efficiency- Concerns the proper incentives to create new quantities of a resource. Looking into future, and whether or not you have the right incentives to produce.
d. Outline of Copyright Act of 1976
i. §101- Glossary containing definitions of terms used in the Act.
ii. §102- Subject matter of copyright- who gets copyright, what gets protection?
1. §102(a) “copyright subsists… in original works of authorship fixed in any tangible medium of expression.”
2. §102(b) Itemizes some key limitations on copyrightable subject matter.
iii. §106- grants a series of six exclusive rights that together constitute what a copyright owner owns.
Chapter 2: The Basic Hurdles of Copyright Protection
I. Two basic Requirements (Fixation and Originality)
a. “Fixation”
i. Copyright attaches automatically as soon as a work is “fixed”
ii. Elements (Cartoon Network)
1. Embodiment: “Embodied in a medium” (such that it may be perceived)
2. Duration: “for a period of more than a transitory duration.”
-The perception, reproduction or communication (not the copy) is what must last for the sufficiently long period
iii. 17 U.S.C. §101:
1. 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. 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.
iv. Reasoning for Fixation
1. Evidentiary Value
2. Quid Pro Quo – fixing the idea in a solid form
3. Cannot have “retroactive fixation”
a. As soon as distributed to the commons (so long as it isn’t fixed) it becomes property to the commons
b. See Chart in Written Notes
4. Are the ideas perceptible to an ordinary person?
a. Unless the notes of a lecture are verbatim the ideas of the author, there is too much of a gap that they are truly fixated.
v. Copies
1. Copy- Embodiment of a work that has been fixed; includes original
2. A copy is Under current law, a work is protected by copyright as soon as it is fixed; no other affirmative act is necessary.
Fritz v. Arthur D. Little, Inc.
Facts:
-Kiefer paid Fritz to teach his Leadership Course. Fritz made some extemporaneous oral contributions to the course. Kiefer wrote updated versions of the course often, and incorporated Fritz’s oral contributions. Kiefer claims that he took notes on Fritz’ oral teachings.
Procedure:
Fritz sued Kiefer, alleging copyright infringement in the lectures that he delivere
§2139(a): A person who, without consent of the performer(s), knowingly and for commercial advantage or private financial gain:
(1) fixes sounds or sounds/images of a live musical performance OR reproduces copies of such performance;
(2) transmits/communicates to the public sounds or sounds/images of live musical performance; OR
(3) offers to (or actually does) distribute, sell, rent, or traffic the above.
Analysis:
-§2139(a) provides criminal remedies to the government
Argument over meaning of Copyright Clause:
-π: performances are outside the scope of Clause b/c they are not fixed
-∆: performances are within scope b/c they’re creative works, but violates the Clauses limits because they are not fixed.
Ct: Congress exceeds its power under the Commerce Clause by transgressing limitations of the Copyright Clause only when:
(1) the law it enacts is an exercise of the power granted Congress by the Copyright Clause, AND (2) the resulting law violates one or more specific limits of the Copyright Clause.
-The Copyright Clause empowers Congress to “secure…rights.” (‘secure’ = ‘establish’)
-However, b/c it’s a criminal law, it doesn’t “establish rights” it prevents others from infringing
-§2319(a) Prevents others from infringing rather than establish a ‘right’ for the CR holder
Holding:
– §2319A was not enacted under the Copyright Clause; Upheld under the Commerce Clause
-Congress did not exceed its power under the Commerce Clause.
-Is it (the criminal statute) constitutional? Yes
b. “Originality”
i. Elements (2 implications from the Bleistein case)
1. Independent Creation- An ‘original’ work cannot be copied from another work; must be ‘made from scratch’
2. Modicum of Creativity- A work must display some minimal level of creativity
ii. In a Photograph
1. CR extends to the extent that a photograph is original in the creation of the subject
