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Temple University School of Law
Post, David G.

Common Law and Statutory Copyright
1)       Common Law Copyright- common law of copyright is state law
2)       Rights prior to publication under the Copyright Act of 1909
a)       Under Copyright Act of 1909, once you publish, if you do not comply with statutory formalities, you lose all rights.
b)       Pushman: Unconditional sale of a work results in transfer of all common law rights unless the author takes steps to retain those rights under the 1909 Act’s regime. (Burden is on Copyright holder).
3)       Pushman: highlights differences between 1909 and 1976 Copyright act
a)       1909 Act: Critical moment is publication- (“copyrighted” used as a verb)
i)        Protection began at moment of publication of the work. Before work was published, there was no Fed. Rights attached to that work. So, had to go to State law (common law). Once published, rights governed exclusively by Fed. Statute and preempted state rights.
ii)      In addition to publishing the work, you still need to have copyright notice and registered copyright. If you fail to do this, you don’t get Fed. Protection, and you’ve lost state protection. (Goes instantly into Public Domain).
b)       1976 Act: Critical moment is when work is fixed in a tangible medium of expression. (that is when Fed. statute preempts state law).
i)        Absence of formalities under 1976 act- copyright subsists in works of authorship from the time they are fixed in a tangible medium of expression. You don’t have to copyright your work.
(1)     Sec. 401- notice of copyright- notice may be placed on it (permissive, it is not required).
(2)     Sec. 408- Copyright registration: registration is permissive- “may obtain registration”
c)       Why would anyone register?
i)        Sec. 411- Must register copyright before bringing action in order to get into federal court.
ii)      Sec. 401(d)- if there is copyright notice, can’t use defense that you were unaware you were infringing, except for 504(c)(2).
(1)     “504(c)(2)- the court shall remit statutory damages in a case where infringer had reasonable grounds to believe their use was fair use and meeting other requirement.”
iii)    Sec. 412- registration is a prerequisite to certain claims for remedies. 
(1)     You must register the copyright (before infringement occurs) in order to be eligible to collect statutory damages and attorneyfees
(a)     You get 3 month window to register (read 412 carefully)
d)       Divisibility of rights: Before 1976, copyright was an indivisible bundle of rights. There was always ONE owner that owned the entire bundle. That has been overturned. See 201(d)- transfer of copyright: rights (and subdivisions) are divisible .
i)        Creates 2 separate markets- 1 for the physical work and 1 for the copyrights to move about.
e)       What result if Pushman happened now? Under 1976 Act, the result would be different.
i)        Burden is reversed under the 1976 Act. (U of I now has to show the right was transferred).
(1)     Under Section 202:
(a)     Ownership of Copyright as Distinct from Ownership of Material Object.
(i)      “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.”
1.       further, transfers of exclusive rights in copyright must be in writing
f)        Can you make an argument based on sec. 202 NY Graphic?
i)        Transfer of the material object does not OF ITSELF transfer any property rights in the material object.
ii)      New fact: Pushman says to the University, when I sell this to you, you have the right to reproduce. 
(1)     Transfer of object itself is not enough, but NY graphic can point to more. Still fails.
(2)     Agreement has to be in writing (and signed) to be transfer of the exclusive right. (sec. 204).
(3)     Can argue they have a non exclusive license. (does not need to be in writing).
4)       The 1976 Act provides mechanisms for analyzing rights regarding works protected by copyright prior to January 1, 1978 under the 1909 Act
a)       Section 303: “Duration of Copyright: Works Created but not Published or Copyrighted Before January 1, 1978.
i)        (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. 
ii)      (b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein.”
b)       This section requires the court to determine whether a work was published or not under the 1909 Act, and therefore, injected into the public domain.
i)        if a work is in the public domain, copyright is not revived under this section, it remains in the public domain
ii)       Under the 1909 Act, only general publication without compliance with the statutory formalities will divest the author of common law copyright, and place the work into the public domain
c)       MLK: King’s estate sued CBS for infringement of their copyright in the “I Have A Dream” speech after CBS used footage of the speech in a historical documentary.
i)        Issue: Whether distribution of copies of the speech, without copyright notice attached, to members of the press prior to delivery of the speech constituted a general or limited publication.
(1)     This is a claim arising under Fed. Law. Big Issue is about statutory retroactivity. Ct. analyzes the publication issue under 1909 Act, not because King gave his speech in 1963, but because the 1976 act directs the court to look to prior acts (1909 Act here) under certain circumstances.- COURT IS APPLYING CURRENT LAW TO KING CLAIM
(a)     Choice of law provision within the 1976 Act
(2)     If this was in the public domain in 1963, then there is no infringement. The court is applying the 1976 act because it repealed the 1909 act. We are looking to the 1909 act, because the 1976 directs us to look at the 1909 act in this case.
(a)     Sec. 303- duration of copyright: works created but not published or copyrighted before 1978.
(i)      If work wasn’t already copyrighted, 1976 affords it some protection if it wasn’t already in public domain.
(b)     There is nothing that gives protection to something that was already in public domain.
(3)     Why do we have to figure out whether there was a publication? MAIN POINT OF MLK CASE-
(a)     If it was published when he gave the speech (before registering for copyright), then at that moment the federal regime kicked in. Federal regime would’ve required copyright notice, and registration, which did not happen yet, so he would’ve lost his common-law protection because it was published, and lost fed. protection because he didn’t meet all the requirements.
ii)      MLK Case: Ct. talks about the renewal of the copyright under the 1909 Act.
(1)     Under 1909 Act, copyright was separated into two different terms which could run consecutively.
(a)     Initially 28 yrs, then additional 28 years (renewal term)
(b)     You had to take affirmative steps to renew at the end of the term.
(2)     Now (1976 Act) you get a fixed term- lifetime + 70 years.
(3)     Why would they have this renewal system?
(a)     A lot of works which authors initially sought protection but after 28 years, there was no interest in protecting the copyright. Those works fell into public domain.
(b)     You could transfer the copyright in a work. You could not transfer the right to renewal.- Why would they do that?
(i)      Author retained the right to renewal.
(ii)    It rewards the author. You might sell copyright not knowing its valuable. Then after 28 years you could get it back.
Limits of Statutory Subject Matter
Rule: § 102 (a): In order for copyright to subsist in a work, it must be an “original work of authorship fixed in a tangible medium of expression.”
1)       Originality requirement (Bell v. Catalda standard)
a)       Work must exhibit a modicum of creativity
i)        Author must have engaged in their own intellectual endeavor. (independence)
ii)      You can have identical copyrighted works as long as each author arrived at the product independently (original to the author)
(1)     “independent reproduction of a copyrighted . . . work is not infringement”
(2)     “The author is entitled to a copyright if he independently contrive

o copyright
(2)     if yes, then the pictorial, graphic, or sculptural elements are protected, but not the utilitarian aspects of the design
5)       Idea of conceptual separability is difficult to define
a)       Is the object capable of existing independently as a work of art?
i)        Kieselstein-Cord v. Accessories By Pearl, Inc: Plaintiff designed belt buckles. They were sculptural designs cast in gold and silver. Both buckles are part of the Metropolitan Museum of Art’s permanent collection. Often worn as jewelry in other places than on the waist. Defendant made knock-offs of the belt buckles out of common metal.
(1)     Court analyzed whether the buckles had pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the belt buckles.
(a)     Separability can be either conceptual or physical
(i)      Court thought that the belt buckles had conceptually separable elements, mentioned that some wearers use the buckles to ornament other parts of the body other than the waist
1.       They can be considered jewelry, which is subject to copyright protection
(b)     If the aesthetically pleasing elements are necessary to the performance of the utilitarian function, they are not conceptually separable, and cannot be protected by copyright as a pictorial, graphic, or sculptural work.
ii)      Carol Barnhart Inc. v. Economy Cover Corp: Plaintiffs designed mannequins in the model of partial human torsos. Defendant did not contest ownership of the design, or the fact that they copied it, the only issue here is whether the mannequins were copyrightable.
(1)     Court looked to whether the aesthetically pleasing features of the mannequins were physically or conceptually separable from the utilitarian aspect of the mannequin
(a)     Distinguished from Keiselstein, saying that the ornamental features of the belt buckles were entirely unnecessary to the utilitarian function of the belt buckle, while the aesthetic features of the mannequins were “inextricably intertwined with the utilitarian feature, the display of clothes”
(b)     Mannequin can’t function without features like life-sized configuration of breasts or the width of shoulders
(c)     The form of the display can always make something artistic, but it can’t always make that object a work of art
b)       Denicola test (applied in Brandir): Conceptual separability exists where the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences
i)        Brandir Int’l, Inc. v. Cascade Pacific Lumber Co.: Plaintiff manufactured bike rack. – court tried to determine if the artistic elements of the bike rack were physically or conceptually separable from its utilitarian function as a bike rack.
(1)     Test: Conceptual separability exists when the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences.
(a)     Bike rack was not subject to copyright protection because the artist was “influenced in significant measure by utilitarian concerns”
(i)      Court distinguishes a situation where the sculpture is created as a work of art, and then subsequently put to functional use as a bike rack.
(ii)    In that case, it could be protected by copyright because the functional considerations were not present when it was created
(iii) Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices