Copyrights Harris Fall 2015
I Subject Matter of Copyright: (1) Original works of authorship + (2) fixed in a tangible medium of expression
A. §102 (a): CR protection in original works of authorship fixed in any tangible medium of expression now know or later developed, from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device
B. §102 (b): in no case does CR extend to any idea, procedure, process, system of operation, concept, principles, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work
C. 202: Ownership of a CR is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not itself convey any rights in the CR work embodied in the object; nor, in the absence of an agreement, does transfer ownership of a CR or of any exclusive rights under a copyright convey property rights in any material object.
1. You don't have CR in the material used to create the work.
D. Anti-Bootlegging Statute 1101(a): Prohibits the fixation or transmission of a live musical performance without the consent of the performer and also prohibits the reproduction or distribution of copies or phonorecords of an unauthorized fixation of a live musical performance
1. Is this constitutional? Arguably not because live performances don't satisfy the fixation requirement. Also, this statute doesn't impose a time limit on the protection, creating perpetual protection.
a. Congress: says nah, this is a different protection, not CR protection so it need not abide by the constitutional requirements.
2. TRIPS 14(1) Offers the same protection as 1101(a)
E. Idea/Expression Dichotomy: Limits the scope of CR protection by differentiating an idea from the expression or manifestation of that idea.
F. Works of Authorship:
1. Literary Works
2. Musical –including any accompanying music
3. Dramatic –“….”
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works
II Fixation 102(a): (Embodiment + Duration) a work is fixed when its embodiment in a copy or phonorecords, 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 a transitory duration.
· A work consisting of sounds, images, or both that are being transmitted, is fixed under this title if a fixation of the work is being made simultaneously with transmission
A. Williams Electronics: the fixation requirement is met where a work is sufficiently permanent or stable to be perceived and reproduced. Although players could alter settings, the original audiovisual features were repeated over and over.
B. Cartoon Network: Where the embodiment of a work is only transient, (here, only 1.2 seconds), the duration requirement is not met/ a copy has not been made for purposes of 102.
III Originality: some modicum of subjective intent. We have this requirement because “authors” implies some type of originality.
A. Burrow-Giles: protectable “writings” are limited to an author’s original expression of the idea –ideas (i.e.. Oscar Wilde’s appearance) are not protected. Here, the photo is protected to the extent it represents the independent, intellectual judgments/decisions of the author.
B. Bleinstein: You may copy the original, but you may not copy the copy + non-discrimination principle/aesthetic neutrality.
1. Advertisements/commercial works are still CR as long as they meet the requirements for CR protection. The commercial nature of a work will not cause it to lose “artistic merit.” Judges shouldn’t be in a position to make artistic-merit judgments.
C. Alfred Bell: Merely placing an exact copy of a work in a different medium does not warrant protection. Making an exact copy isn’t protected because the origin of the expression isn’t owed to the person who copied the underlying work, it’s owed to someone else. You need more than a mere trivial variation.
1. Different medium: Merely placing an exact copy of a work in a different medium does not warrant protection.
2. Copies of Public Domain Works: a copy of a PD work is copyrightable only to the extent that it is original, aka a distinguishable variation or a nontrivial difference.
D. Feist Pulications: Originality requires that the work owe its independent creation to its author and that it was created with a modicum of creativity. Compilations of existing
Typeface as typeface
J. SCENES A FAIRE: (French for “scene that must be done.”) Elements of a work (Incidents, characters or settings) that are indispensable or standard in the treatment of a given topic are not CR.
K. A.A. Hoehling: Interpretations of historical events, when presented as fact, are not CR as a matter of law.
1. POLICY: we don't want to deter others from contributing to history/forming their own interpretations; for historic works, subsequent authors are extremely likely to rely on the information of a former author
L. ATC Distribution: Where there is a limited way to express the underlying idea, those expressions may not be CR.
1. Reasoning: Unlike the words that comprise a novel and create a narrative, the numbers used in the catalog only add up to a long list of numbers. Putting them together doesn't make them expressive in the way putting words together can create a narrative.
a. Also, no protection for ideas. You may not avoid the requirements of patents by trying to secure copyright protection.
IV §103 Subject Matter: Compilations and Derivative Works: CR in compilation or a derivative work extends only to the material contributed by the author, distinguished from the preexisting material employed in the work, and does not imply an exclusive right in the preexisting material.
A. Derivative Work: 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 adopted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.
Why protect derivative works: just because it is based on something else doesn't mean there can't be original elements.