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Temple University School of Law
Post, David G.

I.      Review of copyright basics; common law & statutory copyright
A.    Pushman v. NY Graphic Society, 39 N.E.2d 249 (1942)
1.      Common Law –
o    No federal common law copyright. New York does have a common law copyright, the right of first publication, but that transfers along with the physical work when it is sold. This right can be reserved, but must be done so explicitly. For some reason, the donation to the university was not considered a first publication.
B.     Hemingway v. Random House, 244 N.E.2d 250 (1969)
1.      Speech –
o    No state common law copyright in conversations in which Hemingway did nothing to reserve such a right. The author took notes and sometimes recorded conversations and published some articles during Hemingway’s lifetime. No unfair competition, as this would not compete with Hemingway’s books. If anything, it would increase interest. The copyright Additionally, no privacy interest of Hemingway’s wife was violated as she is a public figure.
o    Common law and statutory copyright claims are mutually exclusive. Common law is handled by the state, rights before publication. Copyright is handled federally, rights after publication.
o    Speech – If common law is to protect speech, then the speaker needs to make that explicit. There is no assumption that speech is protected.
C.    STATUTE – § 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978
(a)     Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.
(b)     The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein.
D.    Estate of MLK v. CBS, 194 F.3d 1211 (11th Cir. 1999)
1.      General Publication –
o    Once generally published, the work is either in the public domain or copyrighted if in compliance with federal statutory formalities. (MLK)
o    General publication occurs when a work is exhibited in a way that permits unrestricted copying by the general public or when tangible copies are distributed to the public. (MLK)
o    Limited Publication – Mere performance of the speech and release for coverage of a newsworthy event is not a general publication. It is a limited publication and does not destroy common law copyright. (MLK)
o    Works published before 1978 are subject to 1909 formalities. (MLK)
II.   Limits on statutory subject matter
A.    STATUTE – § 102. Subject matter of copyright: In general (p. 117)
(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 machine or device. Works of authorship include the following categories:
(1)     Literary works;
(2)     Musical works, including any accompanying words;
(3)     Dramatic works, including any accompanying music;
(4)     Pantomimes and choreographic works;
(5)     Pictorial, graphic, and sculptural works;
(6)     Motion pictures and other audiovisual works;
(7)     Sound recordings; and
(8)     Architectural works.
(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.
B.     Baker v. Selden, 101 U.S. 99 (1879)
Are the bookkeeping forms copyrightable? NO, they’re just the idea.
1.      Books Describing Science/Art –
o    Copyright to a book describing a particular art (not ornamental) does not give copyright to the use of the art itself. Novelty is required for the book, not the art, as only patents can address the art. (Baker)
2.      Purpose of Application and Use –
o    The purpose of teaching found in a book describing a particular art is to result in the application and use (consistent with the constitutional purpose, and what patents are for). (Baker)
3.      Merger Doctrine –
o    If granting a copyright to an expression would effectively grant a monopoly on the idea as well (if there are limited ways of expressing the idea), the two merge and are not copyrightable. (Baker)
C.    Continental Casualty v. Beardsley, 253 F.2d 702 (2d Cir. 1958)
Beardsley developed blanket bond, published in a pamphlet copyrighted. Are the forms illustrating the blanket bond copyrightable? YES, but thin copyright, no infringement.
1.      Forms Copyrightable –
o    No blanket prohibition on copyright of forms. (Beardsley)
2.      Inseparable Expression and Practice –
o    Where forms constitute the means inseparable from the explanation, forms can be subject to copyright protection. (Beardsley)
3.      Thin Protection –
o    Where practice of an art can only be expressed by employing the plan, even if that plan be copyrightable. This gives little protection. (Beardsley)
D.    Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967)
Is a set of rules for a sweepstakes type contest copyrightable? NO, as it is the only way to implement the idea.
1.      Merger Doctrine –
o    Where an idea can only be expressed in a very limited number of ways, to permit copyright would permit a monopoly on the substance. This is the “idea” that has long been rejected for copyright. (Morrissey)
E.     Summary –
o    Ideas are not copyrightable. Methods and rules are not copyrightable. Expressions are copyrightable.
o    Courts reluctant to allow patentable things to also be copyrightable.
o    When copyright is granted for a form that practices of an art, the protection is limited. You can’t claim infringement for someone just practicing the art.
III.           Commercial designs, useful articles, architectural works
A.    Mazer v. Stein, 347 U.S. 201 (1954)
Is the art in the statues copyrightable when they are merged with and created for a utilitarian structure, the base of a lamp? YES, if original.
1.      History of Copyright Act –
o    steadily expanding the scope of protectable subject matter. Pre-1909, protection for “fine arts”; 1909 Act deleted “fine” à aesthetic v. useful distinction ended. (Mazer) 
2.      Useful Articles Protectable –
o    Utilitarian items can now be protectable, but still must be original. (Mazer)
3.      Only Artistic Elements –
o    Copyright in useful items only extends to their artistic craftsmanship, the form, not the mechanical or utilitarian aspects. (Mazer – codified)
4.      Patent v. Copyright –
o    Patentability and copyrightability are distinct questions; granting of one do

evoked by its utilitarian function,” looking at it from the eye of the beholder. (Carol Barnhart)
F.     Brandir International v. Cascade Pacific Lumber, 834 F.2d 1142 (2d Cir. 1987)
Can an article that originated from a work of art but was transformed to be a bike rack be copyrightable? NO, function was the motivation in design.
1.      History of Copyright Act –
o    “Works of art” removed in 1976, replaced by “pictorial, graphic, and sculptural works,” intended by congress to provide a line of copyrightability of applied art and uncopyrighted works of industrial design. (Brandir)
2.      Functional Considerations –
o    Copyrightability of a useful article depends on the relationship between the work and the process of design. Industrial design typically is a functional art without an eye to aesthetics. Copyrightability should depend on “the extent to which the work reflects artistic expression uninhibited by functional considerations.” (Brandir)
o    Function or Aesthetic Design – If design came from function plus art, not separable. If art came first, independent of function, conceptually separable.  “[I]f design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be justified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.” (Brandir)
o    Precedent – This functional approach reconciles Kieselstein-Cord with Carol Barnhart. (Brandir)
o    Juries – This functional approach leaves much in the hands of the fact finder, as the parties will need to present evidence of influence. (Brandir)
3.      Dissent (Winter) –
o    No need to reconcile K-C with CB as they’re not reconcilable. CB was a physical separability analysis disguised as a conceptual separability test (illustrated by their focus on the superimposing of art on buckles in K-C). (Brandir)
o    Focusing on order of events (function or art first?) turns copyrightability on “purely fortuitous events.” The Copyright Act itself focuses on the article itself, not the origin of the article. Newman’s temporal displacement test is better. (Brandir)
G.    STATUTE – § 102(a)(8). Subject matter – architectural works. (p. 117)
            “Works of authorship include . . . architectural works.”
H.    STATUTE – § 101. “architectural work” (p. 111)
            “An ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”