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Copyright
Rutgers University, Newark School of Law
Kettle, John R.

Intellectual Property LAW-KETTLE

Background

I.         BACKGROUND TO INTELLECTUAL PROPERTY (“IP”) LAW
A.      Three Main Objectives of IP Law:
1)       Protect creator/author/inventor: gives them incentive to keep producing because they will make money
2)       Protect publisher/investor: this person fronts the money when the creator does not have it
3)       Enrich the consumer/public
B.      Sources of IP Law:
1)       Constitutional
(a)    Trademark Law: Article I, §8, clause 3
(b)    Copyright and Patent Law: Article I, §8, clause 8
2)       State Statutory
3)       Common Law
C.      Breaking Down Clause 8
1)       Define “limited Times”
(a)    Case: (Eldred v Ashcroft pg 1)
(i)      P (profit from using expired copyrights) sues US Atty. Gen. because congress enlarged copyright terms by 20years – now 70 years after artist death (Sonny Bono Act – CTEA 10/27/98)
(ii)   RULE – It is for congress not the courts to decide how best to pursue the tents of the constitution (law is reasonable follows international trend)
2)       “Science” – Copyrights – Eff. Date Jan 1, 1978, Copy Right Act 1976
(a)    Work of Authors
3)       “useful Arts” – Patents
(a)    Work of inventors
D.      Principles Behind Law
1)       Jurisdiction
(a)    Trademark – State/Fed/CL
(b)    Copyright – Fed (2/15/72 – phono records protection date)
(c)    Idea – CL
(d)    Patent – Federal
(e)    Trade Secrets – State/ Fed (Economic Espionage Act)
(f)    Right/Of/Publicity – State – right of an individual to control the commercial use of his or her name
(g)   Unfixed works (Ideas) – State
2)       Who do the Laws Protect?
(a)     Authors
(b)    Assignees
(c)    Public
3)       RATIONAL
(a)    Intellectual Property:
(i)      Maintain an incentive to produce/create for the benefit & enrichment of society
(b)    Copyright (Natural rights Argument)
(i)      It is a tax on readers for the purpose of giving a bounty on writers.
(ii)   *****
·         Can make copies of – Music, Software..
·         Can not make copies of Books
(c)    Patent
(i)       (1) rewards inventor, (2) stimulates investment, (3) encourages public disclosure as to reduce duplicate efforts,(4) promotes beneficial exchange of products
(d)    Trademark
(i)      Permit consumers to distinguish between goods, which look identically in features that are observable beforepurchase.
COPYRIGHT

II.       What is a Copyright__17 U.S.C. § 101-805 1001-1010_________________________
A.      Definition – Protection to authors of “original works of authorship” which are fixed in a tangible medium of expression for more than a transitory period of time. 17 U.S.C. § 102(a)
1)       ******* If there is more than one way to express something copyright will not be afforded.
2)       All terms defined in §101
B.      Constitutional Basis:
1)       U.S. Constitution, Article I, § 8 cl. 8: authorized Congress to grant copyrights and patents
(a)     Congress shall have the power to promote the progress of science and useful arts, by securing to limited times to authors and inventors the exclusive right to their respective writings and discoveries
C.      Copyright Symbols
1)       P in the circle (P): effect date 2/15/72 no federal law protection before that date only state and common law – right from rec. company until Feb. 15, 2067
2)       ã – rights from author
D.      Types of works (writings) – §102(a)
1)       Literary works
2)       Musical works, including 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
8)       Architectural works
9)       Offensive Content – (Mitchell Bros v Cinema Adult pg 666)
E.      Originality
1)       Originality is a broad standard that is easily met
2)       All you need to show is that a work has elements created by the author with some minimal degree of creativity – that was not copied from another
3)       Work must be original to the author to qualify for copyright protection
4)       A work that lacks originality is not protected by copyright, and nonoriginal elements of a work are not protected (i.e. a book can be protected but the facts in the book may be freely copied)
F.       What is not subject to protection – §102(b) Baker v Selden pg 668
1)       Ideas
2)       Procedures
3)       Process
4)       System
5)       Method of operation
6)       Concept
7)       Principle
8)       Discovery
9)       Meger Doctrine (HR Jewelery v Kalpakin pg 672 – courts will withhold protection from an otherwise copyrightable expression if the idea expressed can be only expressed one-way. – idea & expression inseparable
G.      Qualifications for Copyright
1)       Elements:
(a)     Work must be original (Sheldon v MGM pictures pg 674)
(i)       Original to the author
(ii)     The author must have created it
(iii)    Possess at least some minimal degree of creativity
(b)     Work must be fixed in a tangible medium of expression
(i)       Put into a copy or phonorecord
H.      Special Doctrines for Special Circumstances
1)       Facts
(a)     Facts are not copyrightable as they are not original (Feist Publications v. Rural Telephones pg 679)
(b)     While a book containing facts is copyrightable, the underlying facts are not
(i)       Maps conflicting issues US v Hamilton pg 690 court found enough org to warrant copyright.
(ii)     Case reporting circuits are split 2nd v 8th pg 691
2)       “Selection, Arrangement, and Coordination” 17 USCA §101
(a)     While facts are not protectable—the selection and arrangement of them may be so long as it has a “minimum degree of creativity” (Feist Publications v. Rural Telephones pg 679)
(b)     But only the components of the work that are original to the author are copyrightable (Feist Publications v. Rural Telephones pg 679)
3)       “Sweat of the Brow” – The Feist court (see below) eliminated this doctrine est. in Jeweler’s Circular Publishing Co 281 F., at 88 pg 684
(a)     This doctrine does not permit the copyright of facts (Feist Publication v. Rural Telephones pg 679)
(b)     Originality, not sweat, is the touchtone of copyright protection (Feist Publications v. Rural Telephones pg 679)
4)       Commercial Works- prior to this case ads were seen as FUNCTIONAL (not protected)
(a)     Copyright is not limited to protecting the fine arts (Bleistein v. Donaldson Lithographing pg 675)
(b)     Works commercial in nature are just as eligible for protection (Bleistein v. Donaldson Lithographing pg 675)
5)       Systems, Procedures, and Functionality(idea-expression divide doctrine)
(a)     A book on a given system or procedure may be copyrightable (Baker v. Seldon pg 668)
(b)     But the underlying system or procedure is not (Baker v. Seldon pg 668)
6)       First Sale Doctrine – 17 USC §109 or §106(3) of the copy rights act
(a)     Purchaser of a copyrighted work can sell, give away, or otherwise dispose (distribution) of the copy (note limitations for software and phonorecord §109(b)) without obtaining any further authorization.
(b)     Purchaser cannot, however:
(i)       Reproduce (except for private use)
(ii)     Create a derivative work – (Mirage Editions Inc v Abquerque ART Co. pg 739)
(iii)    Publicly perform the work
(c)     §109(b) – Created by the Record Rental Amendment 1984
(i)       A owner of a phonorecord may not rent, lease, lend without

the author who created most of the work as sole owner.
2)       Implications
(a)     Joint authors are deemed co-owners unless an agreement to the contrary
(b)     Absent an agreement, each joint author has the right to exercise his rights in the work as long as he accounts to his co-authors for any profits
(c)     Recapture – The copyright duration in a joint work using the last surviving author as the measuring life
(d)     You cannot represent joint-authors unless you have a signed waiver
D.      Work Made For Hire
1)       §201(b): With a work made for hire, the employer is deemed the author and owner of copyright unless the parties agree otherwise
2)       Elements – 17 USC §101 – Restatement § 220(2)
(a)     (1) A work prepared by an employee within the scope of his employment; or – “Employment” defined by the common law of agency – Restatement (Second) of Agency § 228 (1958)
(i)       (C4C Non Violence v. Reid pg 695) – 12 part test
·         The level of skill required to do the work
·         The source of the tools and instrumentalities used to do the work
·         The location of the work
·         The duration of the relationship between the parties
·         Whether the hiring party has the right to assign additional projects to the worker
·         The extent of the worker’s discretion over when and how long to work
·         The method of payment
·         The worker’s role in hiring and paying assistants
·         Whether the work is part of the regular business of the hiring party
·         Whether the hiring party is a business
·         The provision of employee benefits
·         The tax treatment of the worker
(b)     (2) If the author is not an employee, then:
(i)       Made under an expressly signed (by both parties) written instrument; and
(ii)     Specially ordered or commissioned for use as a: (must be one of 9 categories §101)
·         Contribution to a collective work
·         As a part of a motion picture or other audiovisual work
·         As a translation
·         As a supplementary work
·         As a compilation
·         As an instructional text
·         As a test or as answer material to a test
·         As an atlas
·         ****** Stand alone work of art (like sculpture) does not fit with 9 categories must have been intended to be included in a BIGER body of work. **** Even if there is a written agreement.
·         *** to the extend that the work does not qualify as a work for hire the author transfers all rights to the emoplyer.
E.       Collective Work – compilations
1)       Elements – §101
(a)     A work such as a periodical issue, anthology, or encyclopedia;
(b)     Where a number of contributions, constituting separate and independent works are assembled into a collective whole
2)       Limitations on Rights
(a)     For a collective work, copyright law recognizes separate copyrights in:
(i)       The individual works §404(a)
(ii)     The collective work §201(c) – microfilm is OK