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Santa Clara University School of Law
Zimmerman, Mitchell

▼❑ Prerequisites for © Protection
▼❑ Fixation
▼ ❑ 1. © clause of Con allows protection of “writings” of authors to promote the useful arts and sciences
• ❑ A. Sup Ct defines writings as any physical rendering of the fruits of the author’s creativity
▼ ❑ B. WHITE SMITH v. APOLLO CO. (1908, overruled in part by 1909 Act)
• ❑ i. Punched roll for player piano not a copy, b/c not readable by people, not presented in a written record of intelligible notation
• ❑ ii. Strict interp of the © Act as it existed at that time
▼ ❑ C. 1976 Act – Definition of “Copy” (Sec. 101)
• ❑ i. 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 devise
▼ ❑ D. 1976 Act – Definition of “Fixation” (Sec. 101)
▼ ❑ i. 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
• ❑ 1) Sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated
• ❑ 2) For a period of more than transitory duration
▼ ❑ 3) A work consisting of sounds, images or both, that are being transmitted (e.g. live broadcast) is fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission
• ❑ Transmission rule – transmitted sounds or images are © if fixation (record) made while being transmitted
• ❑ Bootleg problem – statute req both transmission and recording under permission of author; live performances not transmitted not ©, permitting bootlegging by audience members
▼ ❑ E. MIDWAY v. ARTIC INT’L (1983)
• ❑ i. Midway’s videogames are fixed in such a tangible medium, reproducible and repeatable by assistance of a machine or devise, so as to be © and receive © protection
• ❑ ii. Injunction granted against Artic
▼❑ Originality
▼ ❑ 1. Original: Not defined but interpreted only as required two elements (Sec. 102(a))
• ❑ a. Independent creation by the author
• ❑ b. Modicum of creativity
• ❑ Note: © office regs provide the following are not subject to ©: words and short phrases such as names, titles and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents
• ❑ Note: © office reg re material not subject to ©: works designed for recording information which do not in themselves convey information, such as time cards, graph paper, account books, diaries, bank checks, score cards, address books, report form, order forms and the like
• ❑ 2. © protects the expression of the idea, but not the idea itself (Sec. 102(b))
▼ ❑ 3. Author:
• ❑ a. He to whom any thing owes its origin; originator; maker (BURROW-GILES)
▼ ❑ 4. Sup Ct has stated that originality is Con mandated by the © clause
• ❑ i. Does the Con afford © protection to photographs or did Congress exceed its authority when it attempted to protect photographs? Con not intended to protect only books but also maps, charts, plates and prints as evidence by subsequent statute. Would have included photos but for the fact that photography was not yet invented
• ❑ ii. 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 © protection. Def argument that a photo is a mechanistic representation that in itself contains no originality is w/o merit
▼❑ Absence of originality – At least 2 situations in which a photo should be denied © for lack of originality:
• ❑ (1) photograph of a photograph or other printed matter that amounts to nothing more than a slavish copying. If no originality can be claimed from making an additional print from a negative, there should be no finding of greater originality where the same effect is achieved by photographing a print.
• ❑ (2) photographer, in choosing subject, camera angle, lighting etc., copies and attempts to duplicate all of such elements as contained in a prior photograph. Here the second photographer is photographing a live subject rather than the first photograph, but insofar as the original elements contained in the first are concerned, there is no meaningful distinction. Such an act would constitute an infringement of the first photo.
• ❑ i. Does chromolithograph used to create an advertisement for a circus sufficiently further the useful arts so as to fall under the © clause of the Con? That the images merely represent actual people is no reason to declare a lack or originality and deny © protection. To do so would eviscerate the rights of Whistler simply b/c someone else could render a portrait of his mother
• ❑ ii. Nor should the fact that they were used for co

ar condition. To the extent that expression is to be found in the valuations, such expression is indispensable to the idea, and thus merges with the idea
• ❑ ii. Court of appeals distinguished btw ideas that undertake to advance understanding of phenomena and will aid the understanding of future thinkers (cuts against ©) and ideas that are infused with taste and opinion and do not materially assist the understanding of future thinkers (cuts in favor of ©)
• ❑ iii. Even if the valuations at issue are ideas, they are of the latter variety, infused with taste and opinion, therefore merger should not apply and © should be upheld
• ❑ i. Whether the plotting of a line of a commercial available map that expresses an idea of where a gas pipeline would be run, and where there is literally no other way to effectively communicate the idea of where the pipeline should run, is the creation of a work that can be ©. It is not © – not for lack of originality – but b/c the idea is necessarily merged with its expression
• ❑ E. If there is only a limited no. of ways for an idea to be expressed, there is a strong argument that the idea and expression should be merged and © not afforded
• ❑ F. Idea / Expression decisions, although determinative of initial copyrightability, are to be made in the later stages, when evidence of infringement has been presented
▼❑ Works of Authorship
▼ ❑ 1. Works protected
▼ ❑ A. Literary works
• ❑ >>Works expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, tapes, film, discs, or cards, in which they are embodied
▼ ❑ Fictional characters – you cannot get a © in a character in and of itself, however, if you have a literary work with that character you can sue for someone infringing the character
• ❑ 1) Is the character developed / distinct?