Copyright Outline

Copyright Test Outline
1) Introduction: The Landscape of Copyright
a) Historical Overview
i) Statute of Anne (1710)
(1) First English Copyright Act
(2) Protected the exclusive right of authors to reproduce copies of their books, and by extension, other writings.
(3) Ownership of “copie” in a book amounted to the exclusive right to print and publish it.
(a) It protected only against reproducing the work, usually by printing and reprinting it, and selling the copies.
b) Related Intellectual Property Laws

Commonalities

Differences

· Copyright®artistic and literary expression
· Patent®technological and other innovations
· Trademark ®symbolic information
· Governed by federal statutes and administered by federal agencies

· Copyright
a. originates in the creative act of an author, which itself gives rise to the legal interests
b. subsequent registration with the Copyright Office enhances the value of an owner’s right, but is NOT the source of it
· Patent
a. creates a limit right to exclude (limited “monopoly”) in return for public disclosure of the patentee’s discovery.
b. the claimants right depend wholly on a government grant by the US Patent and Trademark Office (“USPTO”)
· Trademark
a. based on use
b. they can spring directly from the claimant’s qualifying use of a mark on a product, with or without the later confirmation of an official registration with the Patent and Trademark Office and/or with an appropriate state government office
c.

c) Justification for copyright
i) Constitution- Article I, Section 8, Clause 8 – creates a federal government’s right to legislate regarding copyright and patent
(1) Congress shall have the power to promote the progress of science and useful arts, by searching for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries
ii) Utilitarian
(1) incentive to do work but in exchange owner’s monopoly rights are limited in time and duration and scope
iii) Natural Rights “I created it, I should earn something from it”
(1) Rights of the author to reap fruits of their creation, to obtain rewards for their contributions to society, and to protect the integrity of their creations as extensions of their personalities
(a) Anyone who makes money off the creation is unjustly enriched
(2) that an individual who has created a piece of work should have the right to control its use and be compensated for its sale and because the author has enriched society through his creation, the author has a fundamental right to obtain a reward commensurate with the value of his contribution
iv) Sweat of the Brow (USSC disapproved of the argument)
(1) the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort.
(2) a competitor must independently collect the information
(3) USSC- disfavors b/c the copyright laws were never intended to protect information merely for the reason that it may stem from effort or labor
2) Copyrightability →Prerequisite for copyright protection- asks whether a work or an aspect of a work is protected
a) Original Work of Authorship
i) Elements
(1) Independent creation by the author
(a) Originality requires an intent on the part of the author to create a work of authorship
(2) Modest quantum of creativity
(3) Can’t copyright ida, only expression of an idea
ii) §102(a)→Copyright protection subsists, in original works of authorship fixed in a tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or indirectly or with the aid of a machine or device.
(1) Works of Authorship include
(a) Literary works
(b) Musical works and accompanying words
(c) Dramatic works and accompanying music
(d) Pantomimes and choreographic works
(e) Pictorial, graphic, and sculptural works
(f) Motion pictures and other audiovisual works
(g) Sound recordings
(h) Architectural works
iii) must be original to the author and
(1) original means®the work was independently created by the author
(a) as opposed to copied from other works
iv) it must possesses at least some minimal degree of creativity
(1) the requisite level of creativity is extremely low; even a slight amount will suffice
(2) derivative works®works that are based substantially on preexisting matter
(3) trivial work ®some efforts by authors are deemed to trivial or insignificant to warrant copyright protection and the rights that flow from it
(a) even simple shapes, when selected or combined in a distinctive manner indicating some ingenuity, have been accorded copyright protection (Atari Games Corp v. Oman)
v) Not copyrightable→fails to meet deminis
(1) Short words
(2) Slogans
(3) Short musical phrases
(4) Slight variations of musical works
(5) Insignias
(6) Titles of songs
(7) Explanatory and utilitarian instruction
(8) Random and arbitrary use of numbers; numbers assigned in systematic way (not creative way)
(9) Scenes a faire
vi) Photographs (Burrow-Giles)
(1) court defines writing as the literary productions of the author included all forms of writing, printing by which ideas in the mind of the author are given visible
(2) originality – Added his own mental conception to the photograph- choices as to lighting, shading, etc
(3) not copyrightable
(a) elements in side photograph
(b) particular subject or scene
(c) choice of subject matter
(d) A photographer cannot claim copyright in her choice of subject matter, but she may be accorded protection for such aspects as lighting, shading, timing, angle, and choice of film, where she made those decisions (Leigh v. Warner)
(4) Aesthetic Nondiscrimination
(a) Judges will not determine the aesthetic or artistic merit of a work
(i) Judges evaluating issues of copyrightability should not take into account the aethestic quality of the works under consideration (Bleistein v. Donaldson)
(ii)