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Santa Clara University School of Law
Ochoa, Tyler T.

I.             Introduction: The landscape of copyright
A.      Policies/Rhetorics Intertwined in the copyright debate
1.        Purpose:
a.         Establishes conditions for existence of a market and performs the allocation function of determining who gets what
b.         Creator, distributor, and consumer benefit
2.        Utilitarian/Incentive Theory conception of copyright
a.         Primarily a US view
b.         Premised on Economic reasoning
c.          Creates incentives to create in the form of legal protection so works of the mind are brought and shared with the market
                                                                                 i.          Granting a monopoly right creates incentives for economic gain
3.        Natural Rights/Inherent entitlement/unjust enrichment
a.         Based on the right of authors to reap the rewards drawn from their creation – copyright protection arises automatically
4.        Why doesn’t copyright last forever?
a.         It’s unconstitutional
b.         Value in putting works in the public domain
B.      Federal Intellectual Property Law (p. 5 in text)
1.        Patent
a.         covers technological products – requires utility, novelty, non-obviousness
b.         requires disclosure for a limited monopoly
c.          granted by the federal government (USPTO)
2.        Copyright (1976 Act)
a.         protection upon fixation of original expression in any tangible medium
b.         doesn’t protect against independent creation
3.        Trademark
a.         covers words and symbols to distinguish goods and services from those of another
                                                                                 i.          prevents consumer deception
                                                                               ii.          protection extend limitlessly so long as in use
b.         protection upon use
4.        State laws supplement and fill in gaps
a.         Trade secret law, state unfair competition law, non-fixed expression, right of publicity, misappropriation
II.           Prerequisites for copyright Protection – FIXATION
A.      Fixation by Copy or Phonorecord
1.        102(a), a work is incapable of protection under federal law unless it is “fixed” in a “tangible medium of expression”
a.         Fixation can take place on an infinite variety of material object, however the copyright Act defines all material objects in terms of copies and phonorecords
b.         Copy is a material object…in which a work is fixed…and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (a copy can be the original fixation or a reproduction)
c.          Phonorecords are object in which sounds are fixed
B.      Tangible Medium of Expression
1.        Sufficiently permanent or stable
a.         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
                                                                                 i.          For a period of more than transitory duration
b.         A work consisting of sounds, images, or both, that are being transmitted (e.g. a life broadcast) is considered fixed if a fixation of the work is being made simultaneously with its transmission
2.        Anti bootlegging Statute – § 1101, an exception to fixation
a.         Can’t record live musical performances
                                                                                 i.          Promulgated under the commerce clause because the copyright clause is limited to fixed works
                                                                               ii.          Jurisdictional split on whether this is constitutional – 11th circuit held Congress may avoid the fixation limitation in the copyright clause by exercising its commerce power
b.         Balancing interests: unjust enrichment vs. record of cultural history
C.      Perception by Machine or Device
1.        The fixation requirement will be satisfied if the work as fixed can be perceived either directly or with the aid of a machine or device
2.        102(a), copyright protection extends to original and fixed works 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
a.         Thus, the fixation requirement does not require that the work be written down or recorded somewhere exactly as the eye perceives it. 
b.         Allowing copyright-ability for sound recordings, computer programs, motion pictures, and other works embodied on objects that cannot be read without a machine or device
D.      Video Games
1.        Video games with constantly changing images, generated in real time by the skills of players, are considered fixed in a tangible medium of expression (Midway)
a.         While the pictures aren’t fixed, the instructions are which can be perceived with the aid of a machine or device (program stored on ROM – physically etched in a chip); therefore the game is fixed
b.         Even though the images are transient, a video game image can be reproduced
                                                                                 i.          While there is an interaction element, there remains a potential to create the exact same game (finite possibilities)
                                                                               ii.          Images are predictable
2.        What about RAM (the working area of the computer)
a.         Instructions are copied onto RAM while working, but are eliminated upon turning the computer off
                                                                                 i.          Court has ruled that copies on RAM are sufficiently fixed
E.       State law and protection of work before fixation occurs
1.        Problem: in everyday conversation it would be difficult to discern if what someone says is meant to be property. If not labeled in some way then every time someone is quoted they can say it’s their property (Hemingway, and telling of oral stories)
a.         Fixation has evidentiary purposes
III.         Prerequisite to copyright Protection – Originality
A.      Independent Creation
1.        An original work is one that owes its origin to an author (i.e. not copied)
B.      Quantum of Originality
1.        the work must demonstrate a minimal amount of creative authorship
2.        Distinguishable variation
a.         Alfred Bell: changes in the engravings of a lithograph constitutes s

inds of ideas:
o     Hard fact – explaining phenomena or solving problems which will aid the understanding of future thinkers
o     Soft Ideas – tastes or opinions which do not materially assist the understanding of future thinkers
·          Soft ideas, which are infused with taste and opinion are protected while hard ideas, which are more important, go into the public domain
·          The ideas at issue here are soft ideas, therefore merger should not apply and copyright upheld
4.        The Merger Doctrine as applied in different circuits
a.         8th – Some ideas have limited expressions and copyright on those expressions could create a monopoly on the idea, so all of the limited number of expressions are not copyrightable – the idea and expression are merged
b.         9th –  When an idea is limited by expression then the protection afforded that expression is very thin – protection against only a virtually identical work
V.           Works of Authorship
A.      Works Protected (8 listed under 102(a))
1.        Literary Works (see below)
2.        Musical Works
a.         fixation by written notation or by CD/audiotape
b.         Originality in tune, melody, harmony
c.          Copying of lyrics or music alone constitutes infringement
d.         Vs Sound recordings: the particular recorded performance
                                                                                 i.          2 separate copyrights:
·          copyright to composer/lyricist
·          copyright in sound recording to record label
e.         Musical Works subject to compulsory licensing, whereby a compulsory license is granted to replicate the musical work by contacting the owner and paying a royalty (§ 115)
3.        Sound Recordings
a.         limited to right of reproduction, adaptation, and distribution
                                                                                 i.          when a song is played on the radio, the copyright owner in musical work gets a royalty, but not the copyright owner in the Sound recording
b.         No right to public performance, but there is a right of digital public performance via satellite/internet
4.        Dramatic Works and accompanying music
5.        Pantomimes and Choreography
a.         visually fixed by taping
b.         folk dance and social steps not protectable
6.        Pictorial, graphic, and sculptural works
7.        Motion pictures and other audiovisual works
a.         Motion pictures are a series of related images imparting an impression of motion
b.         Audiovisuals are a series of related images intended to be shown by machine
c.          In the case of video games, interactivity doesn’t deprive the game of protection