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

Class: Introduction to Intellectual Property

Professor: David Post

Semester: Fall 2011


U.S. Constitution, Art. I, § 8: The Congress shall have the 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

Eldred v. Ashcroft: the CTEA was passed (extending © protection for both currently © works and future works); E was a publisher of formerly © works that had gone into the public domain, he argued that it was unconstitutional to extend the term for works already under © and that the CTEA violated the 1st Amendment

RULE: U.S. Constitution, Art. I, § 8

HOLDING: the CTEA comports w/ the limited times provision and does not violate the 1st A.

ANALYSIS: although the term is extended, it is still limited (doesn’t violate the “limited times” provision); Congress was bringing our © law in line w/ that of the European Union and thereby allowing authors to enjoy the protections of the EU overseas (promotes the progress of science); Congress had a rational basis for this extension (no higher scrutiny for this 1st A. claim b/c © law is a corollary of the 1st A. that has built in protections and seeks to advance the same goals)

§ 302 · Duration of copyright: Works created on or after January 1, 1978

(a) In General.—Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.

“subsists from its creation” = © exists in the work from the moment it is created (no action/procedure is req’d); you can later REGISTER your ©

(b) Joint Works.—In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death.

(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.—In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed.


§ 102 · Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression (OWAFTME), now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

NOTE: § 101: 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

NOTE: § 101: a work is “created” when it is fixed in a copy or phonorecord for the first time

(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

§ 103 · Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Bell v. Catalda: B was making mezzotints of public domain paintings by old masters; C began reprinting some of B’s mezzotints and B sued for © infringement; C argued that B couldn’t copyright the mezzotints because they were merely faithful reproductions of other work, therefore they were not an original work of authorship

RULE: § 102(a): copyright protection subsists…in original works of authorship fixed in any tangible medium of expression

HOLDING: B’s mezzotints are “original” and thus copyrightable

ANALYSIS: the term original should be read to mean “owes its origin” to a particular author, and not that the work was “startling, novel or unusual, or a marked departure from the past”; every engraver would engrave the mezzotint slightly differently, and those subtle differences are enough to meet the originality requirement

Burrow-Giles v. Sarony: S took a photograph of Oscar Wilde, B made and sold 85K copies of the photo, S sued B for copyright infringement; B argued that the photograph could not be copyrighted because it was “not a writing nor the production of an author” à claimed that S didn’t produce anything, but merely mechanically reproduced the exact features of a natural object

RULE: § 102(a): copyright protection subsists…in original works of authorship fixed in any tangible medium of expression

HOLDING: S’ photograph is “original” and thus copyrightable

ANALYSIS: a wide variety of things are subject to copyright, not just books; Congress can authorize © in all forms of writing “by which the ideas of the mind of the author are given visible expression… so far as they are representative of original intellectual conceptions of the author”; S

ective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

(d) Transfer of Ownership.—

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e) Involuntary Transfer.—When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.2

§ 202 · Ownership of copyright as distinct from ownership of material object

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. Transfer of 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.

§ 204 · Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.