Copyright Law – Fall 2013
Professor McNichol
1710 Statute of Anne
66 years later came the United States. Copyright Act of 1790- tracks statute of Anne.
1976 Copyright Act
102(a)- works of authorships in any media
** Authorship- whether an expression of an idea that is creative
U.S. Constitution, Article I, 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 respective writings and discoveries;
3. Original Expression
a. The Originality Standard
• Rule: Artistic works must be original, but not “new,” or “novel” as with patentable inventions
Rule: while the broad summary of a plot is not copyrightable, the details of a particular embodiment of the plot are copyrightable
• Bleistein v. Donaldson Lithographing Co. (1903): π created some photolithograph advertisements depicting scenes from his circus and registered copyrights on them
– π filed suit against Δ for copyright infringement, but before getting to the fact issues, ct dismissed complaint on the basis that photolithographs aren’t copyrightable subject matter – Supreme Ct found for π
Rule: as long as they are original works, photolithographs qualify for copyright as “illustrations.” The fact that the works are advertisements has no impact on copyrightability.
How useful does the art have to be? Capable of being used in a commercial context makes it useful art?
How useful does it have to be and what uses?
Mazer v. Stein
347 U.S. 201 (1954)
Stein designed a Grecian-style sculpture of a lady and registered it with the Copyright Office as a “work of art.” Then he turned the sculpture into a lamp (with the lady holding up a bulb) and began mass producing them.
Mazer started making identical lamps. Stein sued for copyright infringement.
In general, copyrights are intended to protect works of art (literature, paintings, sculptures, etc.) and not utilitarian items such as lamps and furniture.
The Appellate Court found that a subsequent utilization of a work of art in an article of manufacture in no way affects its right of the copyright owner to be protected against infringement of the work of art itself.
The US Supreme Court affirmed.
Basically, this case said that just because a thing has a utilitarian use (like being a lamp or a doorknocker), that usefulness doesn’t automatically preclude copyright protection of the artistic/aesthetic parts of the thing.
However, later cases clarified that a utilitarian item must have some artistic component in order to be copyrightable, and you need to be able to separate the artistic component from the utilitarian component.
17 U.S.C. §101 now says that, “such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.”
Of course in this case, you could easily separate the ‘sculpture’ part of the lamp from the ‘utilitarian’ part of the lamp.
Esquire, Inc. V. Ringer
This case presents the question whether the overall shape of certain outdoor lighting fixtures is eligible for copyright as a “work of art.”
Copyright protection should not be afforded to industrial designs.
You need to be able to separate the artistic component from the utilitarian component.
Copyrightable material – government works (generally NOT copyrightable)
Mitchell Bros. Film Group v. Cinema Adult Theater
RULE- As long as it is an original work of authorship, the material is copyrightable and it is not the Court’s place to judge the nature of the authorship (i.e. whether the material is obscene or not).
HOLDING
(1) copyright statute contains no explicit or implicit bar to copyrighting obscene materials and provides for a copyright of all creative works, obscene or nonobscene, that otherwise meet requirements of Copyright Act;
(2) protection of all writings, without regard to their content, is a constitutionally permissible means of promoting science and useful arts under Congress’ copyright power; and
(3) obscenity is not an appropriate defense in an infringement action
1. Works of Authorship.
a. Idea/Expression & 17 U.S.C § 102(b)
b. Originality & Creativity
i. 17 U.S.C. § 103.
**Idea Expression Dichotomy: Copyrights protect expressions not ideas, it protects the way you express an idea.
The Nature of Copyright
• Baker v. Selden (1879): π published a book describing a new accounting system,
– Δ later published a different book teaching a modified version of the same concepts – π sued for copyright infringement – Supreme Ct found for Δ because the accounting system was merely an idea.
Rule: Copyright protects the expression of an idea, not the underlying idea itself, which is the domain of patent law (and these are usually mutually exclusive rights) –
– the same rationale applies similarly to books describing new medicines, and books describing drawing techniques; the authors of such books cannot claim monopolies on the uses of the concepts described therein – however, this same rationale does not apply to ornamental designs or pictorial illustrations, for which “the production of pleasure in their contemplation is their final end” (and, thus, there can be no copying without also copying the expression)
102(a)- the list is not exhaustive
***Nichols v. Universal Pictures Corporation
Learned Hand
Summary: The plaintiff was the author of a play which represented about a Jewish family. The respondent had made a similar movie about a Jewish family.
Holding: There is no copyright infringement unless the works are substantially similar.
Rule: “A copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation”.
Certainly copyright for literature cannot be strictly limited to the literal expression; heavily borrowing plot elements and characters can be grounds for infringement –
The test is to decide where the hobbledehoy ends and the expression begins:
1. Produce the most detailed summary that matches both works:
2. At one extreme, an identical copying of every plot element is infringement;
3. A vague, general copying of a topic (a love story during WWII) is not infringement –
This test is not easy to apply, but it focuses on whether the shared elements are merely common elements of such works, or were specifically developed and then copied –
“There is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.
Nobody has ever been able to fix that boundary, and nobody ever can. In some cases the question has been treated as though it were analogous to lifting a po
Summary: Plaintiff HyperLaw Inc published compact discs of court decisions. It sought judgment that case reports of the West Company that were left after redaction were not copyrightable.
Rule: Works of the federal Government are not subject to copyright protection. (17 U.S.C. § 105)
Rationale: Works of the West Publishing in selection and arrangement lacked creativity. Contents of case reports were the works of the federal government and are not copyrightable.
Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 48 U.S.P.Q.2d (BNA) 1545 (2d Cir. 1998) (full-text), cert. denied, 526 U.S. 1154 (1999).
Factual Background
The plaintiff’s (Matthew Bender and Hyperlaw, Inc.) claimed that West has no copyrightable interest in the page numbering of its court reporters. The plaintiffs relied heavily on the 1991 U.S. Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Services Co., where the Court held that names and addresses in a telephone directory were uncopyrightable facts, and rejected the “sweat of the brow” doctrine, which for years had been used to grant protection to otherwise uncopyrightable compilations of facts.
Trial Court Proceedings
The trial court granted plaintiffs’ motion for summary judgment, holding the star pagination system was uncopyrightable:
“ Where and on what particular pages the text for a court opinion appears does not embody any original creation and is not, in my opinion, entitled to protection. . . . What West is trying to do is create a monopoly in reported decisions. ”
the “sweat of the brow” theory of copyright protection for compilations, which was specifically overruled by the U.S. Supreme Court in Feist. After Feist, only an original selection and arrangement of “facts” can be copyrighted.
In a separate opinion, the court held that the minimal enhancements that West makes in its compilations, such as adding attorney summaries and rearranging factual matter in case captions, are not copyrightable either.
**Merger Doctrine- Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. (Mathematical Formula can only be written in one or two ways). In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defense to copyright infringement.
** Derivative works are not necessarily works of authorships. Can be trivial differences or they can be astoundingly creative. How far away from original work makes it a work of authorship.
