Select Page

SUNY Buffalo Law School
Bartholomew, Mark

Copyright Law
Professor Mark Bartholomew
Fall 2015
Intellectual Property Clause: U.S. Constitution: Art. 1, § 8, cl. 8:  “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”
Justifications for Copyright:
Non-Rivalorous Consumption: one party’s use does not interfere with another party’s use
·         Two people can use the work at the same time, without affecting the other person’s ability to do it (i.e. read a book)
·         This is different than tangible goods like someone’s watch or ring
Moral Rights (European): Works are the extension of personality of creator
o   Not the dominant justification
o   Purpose to prevent distortion, destruction, or misattribution of work
·         John Locke: “Man has property in his person, and it is only his right. The labor of his body and the work of his hands are properly his. Whatever he takes from the state of nature is his because it is mixed with his labor. As long as he doesn’t take more than he needs.”
Utilitarian Theory: CR exists and is necessary as an incentive to creativity
·         Only with a guarantee of creativity with authors, artists, etc, have the ability to capture economic value from work, and they would instead chose not to pursue
·         Incentive Theory: CR as an economic carrot
Robust Public Domain:  The public domain includes previously copyrighted works that are no longer protected and certain things that are excluded from protection (like facts or ideas).  This domain is important as we want to encourage a robust public domain, or reservoir of works available to public use. 
·         The ultimate intent of progress is to benefit society as a whole, providing the greatest amount of good for the greatest number of people. 
·         The costs of giving authors rights creates drawbacks to the public by
o   (1) Denying information to other people
o   (2) Creating a monopoly (so authors can charge excessively for a product/work because there is no competition
o   (3) Creating administrative costs in the enforcement of copyright laws.  As such, it is necessary to balance between things worth protecting and things good for the public.
§  Subsequent creators be free to build on work of predecessors so we do not want an airtight system to inhibit subsequent activity
§  Stifling regime may prevent creation, and innovation
·         Why would you need CR if Mozart didn’t have it and still created it?
o   Copying was very difficult à CR is a response to technologies ease of copying
·         Constitution’s IP Clause: Congress may pass CR laws in order to “promote the progress of science and the useful arts”
o   Explicitly embodies incentive rational
o   Not a reward to author but for the benefit of society
o   Only works and people who achieve status of writings and authors can be protected
§  Copyright Law of 1976 governs: effective in 1978!!!! (pay attention to context and dates)
·         Never retroactive: any work created before 1978 is governed by the law of 1909
·         Have to know chunks of current and previous statute and be able to tell them apart: logical place to begin à determine what material is covered by CR law
17 U.S.C. § 102: “In original works of authorship fixed in any tangible medium of expression”
·         Novel may be fixed by writing in ink on paper, by typing into comp and saving to harddrive, a novel may be fixed by speaking it into a recording device
o   Work first exists in author’s head
o   “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 for a period of more than transitory duration. 
§  Must be permanently or stabiley  embodied in a
§  1. Phonorecord: material objects on which sounds can be fixed
·         2. Copy: any other type of object on which works can be fixed
o   No federal protection for non-fixed works!!!
§  Exception: § 1101: Live musical performance has special protection, even though its not fixed (this happened because of bootlegging concerns
·         White-Smith: player piano roll case: in order to be an infringer, the player piano rolls had to be classified as copies (no, cannot be read by the human eye). Old RULE: fixation must be in visually perceptible medium  à Changed in 1976 Act: an be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device
·         ***CR protection attaches the minute that the work is fixed- sit down with a blank piece of paper and write a poem, you have CR protection in poem (notice and registration can strengthen)
Permanence RULE: The fixation requirement is met whenever the work is “sufficiently permanent or stable to permit it to be reproduced or otherwise communicated for more than a transitory period”
Williams Electronics v. Artic International (3rd Cir. 1982) (CB pg. 42)
This case surrounded the copyrights pertaining to a video game, which covered (1) the computer program; (2) the audiovisual effects displayed during the game’s “attract mode”; and (3) the audiovisual effects displayed during the game’s “play mode”
·         D argued that play mode generated new images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical and substantially identical to the earlier ones
·         Court reasoned that although player interaction causes the AV display to change from one game to next, the repetitive sequence of a substantial portion of the sights and sounds of the game remain constant regardless of who operates it
RULE: The fixation requirement is satisfied even if the copy is there for a period of transitory duration and gets erased
Superseded by Statute: § 117: it is not an infringement for th

is necessary. Original in reference to a copyrighted work means that the particular work “owes its origin to the author.” 
Alfred Bell & Co. v. Catalda Fine Arts, Inc. (CB pg. 67)
D reproduced artwork that Bell Company had reproduced by making mezzotint [tracing] copies of pictures that were in the public domain, originally created by old masters. Although it was a re-creation there are accidental differences in the mezzotint so it cannot be an exact copy.  Here, the statute gives wiggle room, protecting reproductions, translations, versions, or other versions of works in the public domain.
RULE: A photograph can lack originality. Originality is not satisfied where the work is simply “slavish copying”.
The Bridgeman Art Library, Ltd. v. Corel Corp. (S.D.N.Y. 1999) (CB pg. 69)
Bridgeman put a CD out of some public domain images for museums. The Corel put out their own CD and copied some of Brigdeman’s images. Court found that color transparencies of paintings which themselves were in the public domain, were not original and, therefore, not permissible subjects of valid copyright and, in any case, were not infringed.
·         Reconciling Bell and Bridgeman: seem to be at odds. Why protect a mezzotint meant to reproduce with absolute accuracy, and not a photo that accomplishes the same thing? Maybe because Bell court harps on unintentional variations that may result from random events (since author’s hand creates work) vs. lack of variation from photo’s technical nature.
RULE: The rendition, timing, and creation of the subject is copyrightable in a photograph.
Mannion v. Coors Brewing Co (S.D.N.Y. 2006) (CB pg. 77)
Kevin Garnett: has photo taken by Jon Mannion. Coors asks to use the photo for mock-up and gets his permission. The coors billboard is similar to Mannion’s photo in arms , clothing, bling-bling, positioning, the cloudy sky, the angle. 
Rendition: including the artistic decisions, lighting, and posing
Timing: which includes that particular moment that you capture, it belongs to
Creation of the Subject: Not going to specify when it happens and not gonna block pics of the subject, but in situations there is creative choice being made in what and how to photograph
It is the entire image that is at issue here, depicting the man, sky, clothing, and jewelry arranged in a particular manner, and does not relate to the components in their individual capacity.