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Intellectual Property
Temple University School of Law
Post, David G.

Professor David Post
a.       Elements of the Claim:
                                            i.      The thing we’re fighting about is protected by copyright
1.      Meaning: Certain exclusive rights attach to it
a.      Registering copyright is not important today as copyright subsists in work fixed.
                                          ii.      I own those exclusive rights
1.      Congress extended Copyright making it life of the author + 70 years
2.      (Article I, Section 8, Claus 8): The Congress shall have power 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”
                                        iii.      What the defendant did violated one/more of those exclusive rights
1.      2nd Circuit( NY) and 9th Circuit (LA) are leading copyright Circuits in this country. These judges tend to be a little more persuasive (hear lots of cases)
b.       Parts of the Copyright Inquiry?
                                            i.      How does something get copyright protection? What kinds of things are protected? (latest is 1976 Act)
1.            Section 102 (a): “Copyright protection SUBSISTS…in original works of authorship fixed in any tangible medium of expression
a.      This means as soon as work is created and fixed in tangible means of expression, the COPYRIGHT is already embodied in the work!
b.      Tangible means: from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
c.       Works of Authorship: Literary works, Musical works, dramatic words, pantomimes, cinematographic works, Pictorial graphic and sculptural works, Motion pictures and other audio visual works, sound recording, architectural works
2.      Original Work of authorship (Originality is Constitutional Requirement).
a.      Feist: low threshold for originality, “Modicum of creativity will suffice
b.      Section 103: Includes Compilations and Derivative Works
                                                                                                        i.      Rule: Can only copyright the original piece of work. Derivative can be original even if copying non-copyrightable work. NEED TO BE SUBSTANTIAL DEPARTURE FROM ORIGINAL (not trivial)
1.      Bell v. Catalda: Bell member of fine arts trade guild with 8 copyrights of separate mezzotints paintings of old paintings. Δ reproduced and sold color copies of the mezzotints that he made by lithography.
i.        Court said that mezzotints were original works of authorship
ii.      Distinguishable variations produced by process of creating ths
c.       ORIGINAL is not the same as NOVEL
                                                                                                        i.      Only has to be original to the author so if INDEPENDENTLY Create work that someone else did, it is still copyrightable. Unlike patents, no novelty needed.
d.      No copyright protection when you INFRINGE on work of others
                                                                                                        i.      E.g. So if Bell’s work infringed on a previous painting, he COULD NOT get a copyright protection
1.      However, he could copyright any part that is original.
3.      FACTS can NEVER BE PROTECTED BY COPYRIGHT but original ARRANGEMENT/COMPILATION of facts with minimal creativity CAN BE!
a.      Feist: Feist took Rural’s directory listings and used them in their phonebook. Feist wanted to pay them for directory but Rural said no. Feist does it anyway. Rural sues them on copyright infringement.
                                                                                                        i.      Rural’s Facts were not copyrightable and alphabetical listing was not an original compilation to be copyrightable
1.      Arranging by blood type or credit history COULD be original enough Compilation that is copyrightable
b.      Can have copyright in a photograph as long as it is representative of original conception of an author
                                                                                                        i.      Burrow-Giles Lithographic Co. v. Sarony: Court held that Sarony’s Oscar Wilde photo was copyrightable because he created a unique arrangement/color selection/ pose that made work original.
1.      Original is anything in which the ideas of the mind of invisible expression are given some visible, oral expression
2.      Court, in answer, does not address this question of physically producing the picture. It does not say that this particular thing is original
4.      You need Authority from the Author to fix an original work of authorship in a tangible means of expression
a.      E.g. So if I record Post’s lecture without his permission, I cannot claim copyright in it.
b.      E.g. If I record it and unbeknownst to me, Post is recording AS WELL, then Post can assert copyright protection against me selling my recording (I run that risk).
5.      You can create the same work as another and not infringing as long as you do not COPY from it.
a.      Rockford Maps vs. Directory Services: Δ Rockford was found to be infringing when he used Dir Serv’s map as a template for creating his own Platt map.
                                                                                                        i.      Effort you put in doesn’t matter in copyright. Only originality does
                                                                                                      ii.      Maps have always been protected
b.      You can create the same work as another and not infringing as long as you do not COPY from it.
                                                                                                        i.      This might seem waste of time, but this is part of trade off as we want people to create things and give them protection as incentive.
6.      Rule § 102 (B): In no case does copyright extend to any idea, procedure, process regardless of the form in the way the idea or process is described, explained, etc.
a.       Baker v. Sheldon: Getting copyright protection for a book describing an art or thing, does not give you protection over that thing itself.
                                                                                                        i.      Book about a new booking keeping system was copyrightable while the system itself was patentable.
1.      Difference between patent and copyright system is that copyright has to be original while patent has to be original and novel to the world.
i.        Sheldon can stop Baker from copying books but not using forms from system itself.
                                                                                                      ii.      Forms are separate from illustrations. Illustrations are the end in itself, where as forms are just the means to making the end. Court says reproduction of similar forms IS NOT infringement of Copyright.Forms end is the USE and not just the illustration.
b.      MERGER DOCTRINE- Something unprotectable means that those things linked/intertwined/CLOSELY CONNECTED to this unprotectable thing are ALSO un protectable.
                                                                                                        i.      e.g. there is the unprotectable thing (e.g. bookkeeping system its

n exclusive to copyright and (not Patent)
i.        Corporations can own patents but only by transfer as they cannot apply for patents since inventor can only be natural person
b.      Determining Employee within Scope of employment
                                                                                                        i.      CCNV vs. Reid: Homeless organization asked Reid to create statute for them to tour around. CCNV makes suggestions at times but Reid works himself. No written agreement. Who owns copyright? Court says Reid was not employee and he owns copyright
                                                                                                      ii.      Courts interpret the word “employee: Employee refers only to formal, salaried employees
1.      Language of statute: Act does not define
2.      Common law meaning: Employment defined with vicarious liability, labor law
3.      Legislative History of Act
4.      Purpose of Act
                                                                                                    iii.      Multi-Factor test to determine “employee”
1.      e.g. skills required, source of the instrumentalities, location of work, relationship, does somebody have control to give additional factors, etc.
                                                                                                        i.      e.g. Selling the painting I created does not transfer my copyright and I can still produce prints even if I don’t have original physical work.
                                                                                                      ii.      E.g. selling a physical book does not mean owner loses copyright in that book.
                                                                                                    iii.      Rights in the work is copyright, rights in the thing is property law.
1.      e.g. I can burn book, scratch it, but can’t reproduce it.
9.      JOINT WORKS: Work prepared by two or more authors, with the intention that their contributions be MERGED into inseparable or interdependent parts of unitary whole
a.      There is copyrightable Contribution by all authors
b.      All joint authors have intention to be Joint authors
                                                                                                        i.      Intention is a subjective test
1.      You look for objective evidence of intent in order to figure out the subjective intent.
2.      Childress: Δ who contributed facts through research on a play was not deemed a joint-author since her facts were not original and not copyrightable and the plaintiff didn’t intend to make her a joint author
i.        Δ Taylor could have secured authorship through K
c.       For Hypos:
                                                                                                        i.      Intention to be Merged?