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SUNY Buffalo Law School
Bartholomew, Mark

Copyright Law
Spring 2007
Legal Protection
Technology making it difficult to access
technology making it diffcult to copy
scope of copyright protection for the creator
The protections that are afforded to all copyright are different and more attractive to some copyrighted material as opposed to other material. In the Microsoft agreement with software shrink-wrap contract is relied upon but is not entirely successful so you agree to have Microsoft use technology to see whether or not you have unauthorized programs.   If you have a manuscript stolen you will rely on the legal protection. While each piece of the pie gets smaller another piece theoretically gets larger in another section. The circle changes when the public sphere enters into the pie and the argument is that as the legal protection gets bigger that it cuts into the public sphere section.
Chronicles of Narnia – SNL Sketch
·            NBC said that was infringing upon its copyright
Reasons why it needed to be protected
·            There is a real financial harm that SNL and NBC might be incurring since SNL and NBC package the DVDs of SNL. 
·            Creative efforts were used by all who participated
·            Incentive to create and one of those incentives can be monetary
Theories of Copyright Protection
Utilitarian – Economic Rationale
·            Incentives paradigm – © granted for a limited time, in order to promote progress of arts/sciences
·            Intellectual Property – by nature is different than tangible property due to the fact that it is consumed in a Non-rivaliously – only one person can eat a hamburger but with an IP millions can use it and possess it.
·            Viewed as Necessary
a.       Information as public goods – © protection counteracts non-exclusiveness, affords exclusive good to incentive production
b.       Provides security for intellectual/economic investment
c.        Balances high cost of initial production w/ low cost of copying – if marginal costs of copying are so low and there are not legal rights to prevent it à little incentive to produce
d.       Balances public/private concerns – encourages production for the public good by allowing private control/right of action
·            Benefits of this Model – fits better with the US constitutional © scheme
e.       Art. I, § 8, cl. 8 – “The Congress shall have Power … to promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”
f.         Recognizes public goods tension – to secure incentive to invest there must be stronger protection, but to promote progress there must be greater access
                                                        i.            As © is stronger it reduces access, but without strong © you lose incentive to create
                                                       ii.            Structure of US scheme reflects this – exclusive rights for a limited time (limited monopoly), bundle of limited rights rather than total protection (inherent restrictions on what is actually protected), including exceptions (fair use, 1st amend, etc)
·            Problems with this model:
g.       Hard to extend same rights to tangible and intangible properties
h.       IP lacks exclusiveness/rival characteristics – don’t need to protect/conserve resources
i.         Cutting off positive externalities of non-exclusive use of intangibles
j.         Prevents cost-effective use of intangibles
k.        Incentive might not always be necessary for production, so society might incur costs of protection, deadweight loss unnecessarily
l.         There may be alternatives
m.     Incentives-Access paradox
·            Incentives for Authors and Publishers
·            Authors’ Rights
Natural Rights- Giving someone entitlement is morally justified
·            Locke’s Labor Theory – you have a moral right to the work of your hands (mix your labor with something in order to remove it from the commons).
n.       Locke Caveats – you cannot own more than you can utilize such as apples and acorns but his theory is based on one person’s efforts.
·            Problematic in the Modern World – if you work for Microsoft, Microsoft still owns the programs you write [© typically vests in people who provide capital/take risks vs. do work].
·            Property as Personhood
o.       Hegel’s Personality Theory – when you possess something, it becomes particular to you and it is your moral right to own something that becomes so important to you [ex. a family heirloom] – property becomes an extension of your personality [protect © as a human right – your artistic expression becomes part of your autonomy – makes more sense with artistic works].
Public Domain
·            General Principles of the Public Domain – “Those aspects of copyrighted works which copyright does not protect”
p.       Works free from copyright – in general, works that don’t meet © requirements
q.       Works created before the enactment of copyright statutes – Bible, Shakespeare
r.         Works that are so old that copyright has expired – beyond duration
s.        Aspects or ingredients of copyrighted works that are not, in themselves, subject to copyright – facts, ideas
t.         Materials or uses that are outside the proprietary regime, that are not limited by the exclusive, codified system
                                                        i.            Not public interest, or public property
                                                       ii.            Flip side of proprietary regime – limits what is accessible/protectible and when
1.       Proprietary – exclusive rights granted to ©-holders
2.       Public domain – open, accessible, unprotected information
u.       Not necessarily free or accessible – just b/c work is in PD doesn’t mean it’s unqualifiably accessible
                                                        i.            Works in PD are subject to restrictions by other laws
1.       Though PD becomes flashpoint for pre-emption issues
v.        Works available in legal sense might not be physically available
                                                        i.            Everyone has right/privilege to use the materials, but might not be able to
·            Defining the PD – where to draw the line
w.      Lockean approach – PD is default, greater intellectual commons that authors can draw from
x.        Hegelian approach – PD is default, authors can appropriate from it by investing will or personality
y.        Utilitarian approach – PD should contain works for which incentive is not required, or works/elements which must remain accessible to allow for other creation/progress
                                                        i.            If no incentive was needed to create à no reason for subsequent ©
                                                       ii.            Basic info/ideas must be open to spur future creation
                                                     iii.            PD prevents protecting too much à disincentive for creation
                                                     iv.            PD facilitates alternative modes of production (and protection)
                                                       v.            Economic concerns
                                                     vi.            Limit access costs to fundamental IP building blocks
                                                    vii.            Minimize deadweight loss and network externalities
z.        Political concerns – PD protects free speech, point of intersection between © law and 1st amend
·            Objections to, Criticism of PD
aa.    Landes & Posner (2003) – creates waste inefficiency
bb.    PD is too narrow, seems derogatory, just a dumping ground for works that are no longer useful or valuable
cc.     Sees property rights as THE driving force behind creation/use – that has limits…
·            Ex. “An Inncovenant Truth,” Greenday, Dixie Chicks
·            Neil Netanel – Copyright and a Democratic Civil Society – copyright fulfills two functions:
dd.    Production Function – © encourages production of works which inform the public and move progress forward;
ee.    Structural Function – copyright encourages creation of industries not under government or other powerful control (no longer rely on patronage, but public pays for their work).
                                                        i.            Dangers with Structural Function – charging public can limit their access to the work.
1.       Solution – digital age is making access easier then ever.
Elements of Copyrightable Subject Matter – what is actually eligible for protection
·            §102 Subject Matter of Copyright: in general
ff.       (a) “Copyright protection subsists, in accordance with this title, 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…”
gg.    (b) in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
·            Class – Three Elements
hh.    Original of Authorship
ii.        Fixed in a tangible medium
jj.        Expression
·            §101 Definitions
kk.     “A work is fixed in a tangible medium of expression when its embodiment in a copy of 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.”
·            Why is fixation a requirement?
ll.        Based on constitutional grant to protect “writings”
mm.                        Work needs to be sufficiently permanent that it can be communicated again – incentive model for transitory, ephemeral works wouldn’t hold up
nn.    Evidentiary purposes
·            Class – Elements
oo.    Has to be authorized
pp.    More than transitory duration
qq.    Tangible Medium of expression
rr.       Digital format is allowed through the code because it no longer requires a human to be able to understand the medium therefore machines are now acceptable.
MAI Systems Corp. v. Peak Computer, Inc. – Digital Fixation – overruled by §117(c)
·            Facts – MAI manufactured computers and designed operating system software. Peak maintained computers manufactured by plaintiff. Peak individuals left their employment with MAI to work for Peak Corporation. MAI filed suit to enjoin ∆s from copyright infringement, misappropriation of trade secrets and breach of contract, and ∆s appealed an order granting partial summary judgment and a permanent injunction. Terms of the software license at issue only allowed the original owner to use the program not a third party.
·            Issue – Does loading of software into RAM, creating a temporary record, meet the fixation standards for copyright purposes?
·            Holding –. The court held that Peak copied plaintiff’s software by transferring it to a computer’s Random Access Memory (RAM) and using it to diagnose computer problems.
·            Rationale – A copy created in RAM can be “perceived, reproduced or otherwise communicated” so loading into RAM creates a copy under © standards
·            Class –
ss.     § 117 deals with owners and they were licensee so it couldn’t save them until the statute was amended. 
tt.        Implications of the case prior to the statutory amendment – every use in digital formatting requires some form of copying to use it.
uu.    Fixation is a loose standard now and it is usually easy to satisfy it.
                                                        i.            Website – satisfies the fixation requirement
                                                       ii.            Caches – satisfies the fixation requirement – due to the transitory requirement not having a lot of teeth now
                                                     iii.            Email – enough for fixation
                                                     iv.            Online Chat – it is saved on your computer and while it may not be there forever it is fixed in a tangible medium
Originality Requirements
Textual- §102 and the Constitution
·            §102(a) – “copyright protection subsists in accordance with this title, in original works of authorship”
·             US Constitution (Art. I, §8, cl. 8) – “secure for limited times to Authors…the exclusive Right to their respective Writings” (presupposes a degree of originality).
Copyright vs. Patent Originality
·            Patents – assumes that person will add something to the existing knowledge base (new, useful, non-obvious);
·            Copyright- less stringent standard – don’t need much more than mere independent creation and at least some minimal level of creativity.
vv.     Original to yourself satisfies this requirement
Burrow-Giles Lithographic Co. v. Sarony  – oscar wilde picture
·            Facts – ∆ copied a picture that Π took of Oscar Wilde and sued for copyright infringement.
·            Issue – whether a photograph is copyrightable because at this time there wasn’t an originality statute, the only leading authority was the constitution.
·            Holding – A photograph that reflects creativity in the photographer’s selection of costume, pose, lighting and composition is sufficiently original to qualify for copyright protection. 
·            Rationale – because the photo was posed and although it was slightly mechanical it was artist in the process by which the photographer took.
·            Class –  for originality, author must contribute something to what was already there –
ww. here, the author contributed: 1)the lighting; 2)the clothing; 3)the background; 4)the positioning of his body – this all amounts to an expressive contribution
Bleistein v. Donaldson Lithographing co. – circus posters –non-discrimination theory
·            Facts – Lithograph Company was copying Circus advertisements.
·            Issue – Whether an advertisement could be considered to be copyrightable
·            Holding – People are free to copy the life-subject of a work, but not to copy the copy. All that is required is some personal input on the subject matter by the author. Use as advertisement does not undermine originality (subjective standard of originality).
·            Rationale – something is original as long as there is a personal input by the person and satisfies the copyright originality standard – “grandma’s refrigerator standard of copyright” – everything gets up there.
·            Class –
xx.     Holmes was worried that judges were not qualified to judge art and that representational art would not be protected.
Notes and Questions page 65
·            Professional photograph – copyrightable due to the originality
·            Parental Photograph – originality
·            Tourist Photograph – originality
·            Driver’s License – shouldn’t be copyrightable due to intuition even that driver’s license photo would satisfy the non-discrimination principle
Alfred Bell & Co. v. Catalda Fine Arts, Inc.  Mezzotint of a painting in the pd is protectable
·            Facts – Catalda reproduced artwork that Bell Company had reproduced of pictures that were in the public domain.
·            Issue – whether a copy of the copied mezzotint of a picture in the public domain was copyrightable.
·            Holding – Satisfied the originality requirement
·            Rationale – Although it was a re-creation there are accidental differences in the mezzotint so it cannot be an exact copy. Originality means that the particular work “owes its origin” to the author. No large measure of novelty is required so long as input of author is “more than merely trivial.” 
The Bridgeman Art Library, Ltd. v. Corel Corp. – transparencies of paintings are not protected
·            Facts –Plaintiff filed a copyright infringement action against defendants and the court granted defendants’ motion for summary judgment dismissing the claim on the alternative grounds that the allegedly infringed works, color transparencies of paintings which themselves wer

without copyright notices, the dental association forfeited its copyright and that the taxonomy, or code, was not copyrightable. The trial court held that the code could not be copyrighted since it cataloged a field of knowledge.
·            Issue – Whether the taxonomy was copyrightable because there were no copyright notices on it and it was in the field of science/knowledge.
·            Holding – On appeal, the court found that the code was copyrightable under 17 U.S.C.S. § 102(a) of the Copyright Act. Nor was the code a “system” un-copyrightable under 17 U.S.C.S. § 102(b).
kkk. The rival dental association could disseminate forms inviting dentists to use the code when submitting bills to insurers.
·            Rationale –Any original literary work could be copyrighted, even if the degree of originality was low. The fact that the knowledge itself was not copyrightable did not mean that a literary work cataloging the knowledge was not protected.
lll.       If the trial court’s reasoning were correct, no taxonomy produced by any professional body could be copyrighted.
·            Rule – While facts cannot be copyrighted, classification is a creative endeavor which can be copyrighted. When there are a great number of variations of expression, the process of selecting one is an original process. Work need not be aesthetically pleasing to be literary.
·            Note – Baker said that a copy cannot utilize the expression of the original, but that copyright is not held in the process. Here the claim is not in the process (Delta may use the ADA system and encourage others to do so) but in the expression (Delta may not publish a derivative work based on the ADA code).
Ideas/Expressions Hypothetical – [Southco, Inc. v. Kanebridge Corp] – Screw Classification
·            Facts – the competitor listed the manufacturer’s part numbers to show the competitor’s comparable products. Each number was dictated by the manufacturer’s system. Once the system was in place, all of the parts in a class were numbered without creativity, which would have defeated the system. The numbers resulted from mechanically applying the system, not creative thought.
·            Holding – The Third Circuit reaffirmed the first panel’s ruling. Nothing in the affidavit on the development of the system undermined the analysis. The affidavit pointed out that before the parts in a particular class could be numbered, a person had to identify the product characteristics to be reflected in the numbers and devise the code to be used to express those characteristics. The numbers were purely functional; they conveyed information about a few objective characteristics of mundane products.
·            Rationale – The question was not whether the numbers represented an idea, as opposed to the expression of the idea, but whether they had the requisite spark of creativity for copyright protection. The manufacturer did not claim its system was copyrightable. The numbers were also not protected because they were analogous to words or short phrases.
·            Dissent – is like the ADA case and the arbitrary numbers are original enough
·            Class Hypothetical with Spacely Sprockets and Cogswell Cogs– ADA compared to Southco
mmm.                  Spacely Sprockets – comparison
nnn.Cogswell Cogs – System of classification rigid – ADA system – System becomes important because systems are not copyrightable
Variations and Derivatives
·          Which circuit are you in?
·          Level of skill required to make derivative work (we reward skilled labor, not sweat)
·          What is the underlying work? (differing standards for fine art v. functional items)
·          Access (did the DW author have access to the original work?)
·          Who holds copyright in underlying work?
ppp.                      public domainàlower standard
qqq.                      permission needed for copyrighted works
Variations Approach – The more variations there are, the more original each individual expression is. Copyright tracks the line between sufficient number of variations (copyrightable) and too few variations (merger doctrine).
·            Whereas the originality requirement has gradually lowered the bar for protection, the idea / expression distinction seems to work as a corrective to guard against unoriginal work being protected simply because it slides above the minimal test applied by the courts. Also, it seems to be (however accurately) a more objective and less discretionary test than originality. At the same time, it may be that the courts end up using originality as a test of whether something like a bookkeeping method is an idea or expression
Derivations Works—A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.§ 101.
·            Class – §103(b) only what is added that is copyrightable
Basic Limitation –
·            (1) does not cover any part of the work in which copyrighted material has been used unlawfully;
·            (2) Only covers new contributions and gives no exclusive right to preexisting material (cannot limit original copyright holder’s rights)
L. Batlin & Son, Inc. v. Snyder –  Uncle Sam Banks –
·            Facts – Appellants sought review of an injunction restraining them from enforcing their copyright and interfering with appellee’s importation of an allegedly infringing plastic Uncle Sam mechanical bank because the district court found that there was little probability of appellant’s success.
·            Issue – Whether there was originality in the development of a plastic bank based on a metal bank long in the PD.
·            Holding – The court found that appellants’ patent was not valid because it was based on a plastic reproduction of an antique that was long in the public domain and did not meet the constitutional and statutory requirement of originality necessary for copyright protection.
Rationale – The court held that appellants did not, in creating the reproduction bank, contribute the element of substantial and not merely trivial originality needed to warrant copyright protection as required under the Copyright Act, 17 U.S.C.S. § 5(g-h). Instead, the only differences between the original and appellants’