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Santa Clara University School of Law
Ochoa, Tyler T.

Ochoa Copyright Law – Spring 2017
Article I, Section 8, Clause 8, known as the Copyright Clause, empowers Congress: 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.
CR therefore created to promote progress of knowledge; encourages creation with financial incentive for a limited time. Expiration needed so that  knowledge could go into the public domain (to benefit society).
Statutory, Title 17
Copyright Act revised many times. Dates are crucial in order to determine which regime applies.
1976 Act – Effective date for works on or after Jan. 1, 1978.
1909 Act – Works created before Jan. 1, 1978;
works published or registered before 1/1/78
if work created before and was not published or registered till after, then the 1976 Act applies.
1 Prerequisites for Copyright Protection
Originality. §§ 101, 102(a).
17 USC § 102(a): “Copyright protection subsists…in ORIGINAL works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Basic Concepts
Originality is required, not novelty like in patents  
Nothing in the Constitution commands that copyright matter be strikingly unique or novel Alfred Bell (copyrighted mesotinted engraving)
Some amount of expression required
more than Short words, phrases, and title, which are not eligible for protection
No bright-line rule for how long something needs to be b4 it can be protected
Amount of creativity required
Numbering systems are almost never subject to protection
Originality is a Constitutional Requirement (Feist)
inherent in Constitution use of “writings” and “authors” – writings have to be original, author is he to who whom anything owns his origin (originator hence limited to original conceptions by him).
Independent creation by the author with a minimal amount of creativity Feist Publications, SCT (telephone book)
independent creation means not copied from someone else
original is low threshold – de minimis quantity of creativity
Not all copying is copyright infringement
You’re allowed to copy anything that isn’t CRable such as facts, anything not original, public domain material, etc.
FACTS NOT CRable because not original
COMPILATIONS of fact can be original and creative, and CR by selection and arrangement
compilation definition includes, selected, coordinated or arranged in such a way that resulting work as a whole is original
Soft and hard facts. Note 9 (p.248). Originality standard may be satisfied where the compilers claimed original contribution is subjective and evaluative.
threshold question is to determine how much judgment went into the work?
Whitepages will NOT likely be protectable. Yellowpages WILL likely be protectable (selection, placement, etc.)
10 Best movies list –some level of creativity and so long as not copied from someone else (and odds are with such a short list, didn’t copy), s/b CR.
10 tallest buildings list –  facts are not CR.
Selection of baseball cards (depends on how selection made: alpha or chron order not good enough)
No “sweat of the brow” doctrine – Copyright rewards originality NOT effort.
Photographs are CR as “writings” Burrow-Giles, (Oscar W. lithograph) p.79
Elements of Originality in Photographs
Rendition: Angle, lighting, shading, exposure, effects, etc.
Timing: Decision to seize a moment in time and reduce it to an image
Creation of the Subject: Can be tricky does photographer create subject? prob. not. Maybe its creating the subject in a particular setting
Standard for originality is very low
Aesthetic non-discrimination doctrine (Bleistein, SCT 1903) p.81; coping of Ps work circus ads/posters; held, CRI). We do not want to judge quality of art, “it would be dangerous undertaking for persons trained only to law to constitute themselves final judges of the worth of pictorial illustrations.”
except true to form digital representations of existing item.
Meshwerks, 10th Cir 1998 (digitized models of Toyota cars). The digital representation is simply a virtual representation of a 3D object. As faithful as you can  make it in that medium, no minimum level of creativity.
When artist who made first copy is same person makes second copy?
Gross., 2d Cr. 1914 (cherry ripe nude photo), p. 87, n.12.  infringed original regardless that he was original author having sold all his rights to that original work. [so basically, it was an unauth. copy or maybe derivative work] Public domain paintings and Museums. P. 109. Bridgement v. Corel, ny. Photos evidencing slavish copying of public domain works of art require no creativity; not original and not copyright protected. despite skill and effort in taking photo.
Fixation (see handout).  §§ 102(a), 101, 1101.
A work is not protected under the statute unless it is fixed in a tangible  medium of expression.
17 USC §102(a) “Copyright protection subsists…in original works of authorship FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
1976 Act – congress overruled White-Smith Music Publishing, (player piano perforated rolls) where court that copy must be a visually perceptive work
17 USC §101:“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of author, 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 or images or both that are being transmitted is ‘fixed’ if the fixation of the work is being made simultaneously with the transmission. [covers TV broadcasts if they are being recoded] see also, §1101 (unauthorized fixation & trafficking in sound recordings & music)
a work is fixed in either a copy or phonorecord. these are material objects that comprise the physical embodiment of the work; the work itself is the intangible property contained in the physical object.
a copy is defined as ‘mater

this was sufficiently original, but the idea-expression doctrine rendered it NOT CR.  Rules in public domain
Expression here was too closely tied to the underlying idea.
if allow would create monopoly on the underlying idea because no one else would develop an independent expression of that idea that would differ sufficiently from the Copyrighted expression. p.121.
narrow – only that exact expression is CR and is ONLY protected against identical or virtually identical copying. “thin copyright”
when does merger come into play? note 6, p. 125. circuit split.
At the outset as to whether the work is copyrightable?
Or, at infringement stage as defense to infringement?
Ets-hokin v. Vodkda, 9th cir. merger doctrine relates to infringement.
[note in class pf. said merger can come into play when filtering out what was copied; determine whether D copied any protectable expression]. see, 125, 2d cir case held ev of merger doctrine be decided only after all the ev of substantial similarity s before the court
Seminal (see notes 116-118) – Baker v. Selden, SCT 1880, p.111 (condensed ledger bookkeeping system).  Idea not CR. Merger doctrine. But, most straightforward conclusion is that blank account books (blank form doctrine – no blank forms unless conveying info) are NOT subject of copyright.
also, where the useful information contained in a work is so intertwined with the particular way in which it is expressed, the information cannot be sued without ‘employing the methods and diagrams used to illustrate it, or such as are similar to them” then those methods/diagrams are free to the public for purposes of practical application … note 5, p.117
Kalpakian, 9th 1971. D had made a realistic jewel bee, had not copied Ps exactly.
Not protected.  CR allows for protection on the specific expression of an idea, not ALL expressions of the idea. Can’t CR all jeweled bees.
think of it as, what is the appropriate scope of competition in this market?  If P is the only one that can make jeweled bees, then that’s too broad and is a monopoly.
Satava, 9th p. 123, Jelly fish out of glass case. No monopoly on glass jelly fish. not protected due to idea/expression dichotomy.  Only a thin copyright that would protect against identical copying.
Ets v. Skky Spirits. vodka bottle picture. P didn’t create the vodka bottle and other people can take picture w/o infringement; natural way to dep
Idea-Expression distinction – protects values of First Amendment (that and Fair Use).
See note 2., p.116.