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

Issue spot the relevant rule of law. Start with rules of law. Explain some. Apply to the facts of the case.

Intro to IP
Professor David Post – Temple Law
A work is created when it is fixed for the first time
Not necessarily on first playing
Fixed meaning embodied in a physical object, by or under authority of the author in such a way that it is physically stable
Fixed – A work is “fixed” in a tangible medium of expression when its embodiment in a copy or 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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
We call there copies or phonorecords (sounds), copy (all others)
Phonorecord – “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
Once created, copyright subsists in it, and lasts for a long time. 
Life +70
Exceptions for works for hire and others
To have CR in a work there is no need to register the CR
There are incentives to register the CR
But for CR to exist, there is no need to register
In order to get into federal court you do need to register your CR

The First Question We Need to Ask: Does Copyright Subsist in the Work? (§§102-104)
§102 is going to help us answer this question
Copyright subsists in original works of authorship fixed in any tangible medium of expression (Acronym OWAFTME), now known or later developed from which they can be perceived, produced or otherwise communicated, either directly or with the aid of a machine or device
Typically we say that all that is needed to satisfy the requirement of originality is that the author contributed something that was more than a merely trivial variation.(Note: Fiest seems to note that variation must be attributable to the author’s creativity
Exception: If you are able to prove that the work came from an independent source then you may be able to get away with and exact copy
Originality means the particular work owes its origin to the author
In Bell v. Catalda – the process of mezzotinting was such that the mezzo’s owed their origin to the author
In Sarony v. Burrow-Giles –the author’s contribution in layout and pose were significant enough to allow © in the photo.
Note, casual photographer who doesn’t put his mark of the photo. This would be pretty easy to argue either way though.
Rejection of “sweat of the brow”
It is not a lot work that creates something that is copyrightable
It is the originality
“Fixed in any tangible medium of expression, now known or later developed from which they can be perceived, produced or otherwise communicated, either directly or with the aid of a machine or device”
Basically this just means that the work has been put into a phonorecord or copy (something from which the work can be reproduced for a while from) under the authority of the author from which it can be reproduced for more than a transitory duration.
Compilations (§103)
Compilations of facts generally are copyrightable
Even though they may contain only facts they may possess the requisite originality for a copyright
Choices that the author makes (as long they reflect a minimal degree of originality ABC)
which facts to include,
in which order to place them, and
how to arrange them
© only extends to the elements of the work that are original to the author.
Derivative works (§103)
Generally can be copyrighted, but the copyright does not allow the author to reclaim the portion of the work to which his originality did not extend, thereby taking something out the public domain or taking away the right to litigate on rights owned by another party
Limitations on Compilations and Derivative Works (§103)
Protection for a work employing preexisting material in which copyright subsists does not expentd to any part of the work in which such material has been used unlawfully
Limitations on the extent of the copyright
Only applied to the original portion
Why? We don’t want to enlarge the scope of copyright protection
Limitations on Copyrightable Material.   When might works not be original? What types of works can’t be copyrighted?
Facts can not be copyrighted  – because they do not owe their origin to the author – Fiest
Note the fake names probably could be copyrighted though
Ideas, Procedure, Process, System, method of operation, concept, ect. (patentable content) (§102(b))
Baker v. Selden – this was the bookkeeping case in which the guy tried to extend © to a “process” or “idea” involving a certain method of book-keeping
MERGER DOCTRINE- Something unprotectable means that those things linked/intertwined/CLOSELY CONNECTED to this unprotectable thing are ALSO un protectable.
Along these same lines it ideas in a book are not copyrightable, it is the expression of those ideas within the book that is the proper subject of copyright
Expressions with limited possibilities of other forms of expression
The example we had was Morrissey v. Proctor and Gamble – this case involved some contest rules.
The district court though that since the substance of the contest was not copyrightable, which is unquestionably correct, Baker v. Selden, and the substance was relatively simple, it must follow that plaintiff’s rule sprung directly from the substance and ‘contains no original creative authorship. REJECTED
HELD: When the uncopyrightable subject matter is very narrow, so that ‘the topic necessarily requires,’ if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance

The next question to ask is: Do I have ownership of the ©?
Ownership of the © rights and registration are pre-requisites to filing an infringement suit
§201(a) – The initial ownership vests with the author or authors of the work
This begs the question, who is the author or authors of the work?
Generally authorship is a factual question for the jury
Well we know that per the initial definition that copyright vests in an original work of authorship fixed in a tangible medium of expression.
Fixation implied that the work was put into a copy or phonorecord under the authority of the author, this does not necessarily mean that

hiring party’s right to assign additional projects to hired party
if so more likely employment
extent of hired party’s discretion over when and how long to work,
method of payment
hired party’s role in hiring and paying assistants
regular business of hiring party
provision of employee benefits
tax treatment of hired party.
How do we determine if a work is made within the employee’s scope of employment
Done at work or not?
Look to contract
(2) a work specially ordered or commissioned for use as a contribution to a collective work,
as a part of
a motion picture or other audiovisual work
a translation
a supplementary work
a “supplementary work” def §101
a compilation
an instructional text
an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
a test
answer material for a test
an atlas
Or, If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence
Commissioned works in general
Note the implications of the section above, Commissioned works are not works for hire, unless they fall into one of the categories listed in §101(1)
In these cases authorship initially vests in the author under the typical §201(a)
Note: PER THE second half of §201(b) even if the person is commissioned the work could still be a work for hire if there is a written agreement to that tune.
Ownership through a transfer of exclusive ownership right. (§204)    
Transfers must in writing
Must be signed by the party originally owning copyright
Looking at CCNV, Is the physical sculpture a work of authorship? How do we differentiate between the copy and the copyright? 
Important: The work has no tangible embodiment. It is in Reid’s head. It is embodied in a material object, then copyright subsists in the work (the thing in his mind), but who owns the tangible object?
Look to contract or property law
§202 – Ownership of a copyright , or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.  
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.
E.g. selling a physical book does not mean owner loses copyright in that book.
Rights in the work is copyright, rights in the thing is property law.
e.g. I can burn book, scratch it, but can’t reproduce it.
Copyright Infringement Outline
Prior to a challenge on infringement certain requirements must be met.