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Santa Clara University School of Law
Ochoa, Tyler T.

Tyler Ochoa
Office Hours: M-W 3-5p
Final: Dec 5, 2-5 (1 hour to outline, 2 hours to write it out) Possible bump for high-quality participation.
1)      Policies/Rhetorics interwined with copyright debate
a)      Utilitarian//Incentive Theory Conceptions of Copyright
i)        Majority US view
ii)      Premised (at least implicitly) on economic reasoning
iii)    Incentives in the form of legal protection is required if works of the mind are to be brought to market b/c of the special characteristics of such intangible commodities which once created cannot be used up and which can be used by large numbers of people at the same time.
(1)   Granting a monopoly right incents creation for economic gain
(2)   Limiting factors (originality, time/scope, idea/expression, fair use) foreclose abuse by authors, prevent charging greater than market rates, thus ensuring optimal dissemination of information to the general public
iv)    Locke’s Labor Theory – Natural Right Rationale
(1)   One owns one’s body. Therefore one should own that which is created by the labor of one’s body as well as the fruits of such labor.
v)      Personality Model (Hegel)
(1)   A creation is a manifestation of one’s personality, therefore it follows naturally that one should own such creation, as they own their personality.
(2)   Difficult to apply to non-creative works or works where little or no personality is reflected in the work, e.g. collective works created by many people.
vi)    Both Locke and Hegel are exposed to arguments that the amount of labor/personality reflected in a work is difficult to measure and could result in an inequitable distribution of ownership rights for joint works.
b)      Other Rhetorics
i)        Misappropriation
(1)   Grounded in fairness
(2)   Why should one who has done nothing be allowed to enrich himself on the enduring popularity of a work, irrespective of how long ago it was created. Protection should endure beyond the statutory limitations…
ii)      Public Domain
(1)   Let the author reap his benefits, but once his time is up, the public should own the work. Antithesis of Misappropriation.
iii)    New Economy/Neoclassical Theory
(1)   Contrasted to incentive theory, copyright does not incent creation, rather it promotes creations to their highest socially valued uses.
iv)    Social Dialogue and Democratic Discourse
(1)   Copyright exists, at least in part, to promote the collective life of society, and that mere reliance on an unregulated market in commodified expression will not necessarily further this end.
v)      Deference
(1)   Courts, on appeal, will often give great deference to the findings of the trial courts and will hesitate to second-guess Congressional judgment in their drafting of the Copyright statute.
vi)    Class Notes 08-13-03
2)      Prerequisites to Copyright Protection – FIXATION
a)      Copyright clause of the Constitution (Art 1, Sec 8, cl 8) allows protection of “writings” of authors to promote the useful arts and sciences.
i)        Supreme Court has defined writings as any “physical rendering” of the fruits of the author’s creat

d)      The Supreme Court has consistently stated that Originality is constitutionally mandated by the Copyright Clause. See definition of author for support.
i)        Burrows-Giles Lithography v. Sarony (1884) p.101
(1)   Does the constitution afford Copyright protection to photographs or did Congress exceed its authority when it attempted to protect photographs? Constitution not intended to protect only books but also maps, charts, plates and prints as evidenced by a subsequent statute. Would have included photos, but for the fact that photography was not yet invented at that time. The arrangement, evocation of expression, posing, lighting, selection of materials and costumes, etc. that went into the photograph are sufficiently original so as to afford the work Copyright protection. D Argues that photo is a mechanistic representation that in itself contains no originality is without merit.
ii)      Bleistein v. Donaldson Lithographing Co. (1903) P.107
Does a chromolithograph used to create an advertisement for a circus sufficiently further the useful arts so as to so as to fall under the Copyright clause of the Constitution? That the images merely represent actual people is no reason to declare a lack of originality and deny Copyright