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UMKC School of Law
Holman, Christopher


Professor Holman

Spring Semester 2011

Chapter 1: Introduction

– copyright governs various rights in books, musical works, movies, computer programs, and other original works of authorship

– Elements of Copyright Infringement

– 1) valid copyright (burden on P)

– 2) copying

– What is Copyright?

– it’s an exclusive right to do certain things

– you have some kind of right, and if it was infringed, you can go to court and ask them to do certain things

– it has to have originality

– this comes from the Constitution (original works of authorship)

– it has to be fixed on a tangible medium

– the Constitution also includes a list of categories

– non-exhaustive

– they are illustrative

– injunction: the court stops the infringer from what they are doing; it is an equitable remedy

– Sec. 102(a) provides the only limitation on what qualifies as a copyright

– an original work of authorship fixed in any tangible medium

– According to Sec. 102(b), copyright does not protect:

– ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which it is described, illustrated, or otherwise embodied in such work

– non-exhaustive list of protected categories under Copyright Law as provided in Sec. 102(a)

– (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

– idea/expression dichotomy:

– you cannot copyright ideas, you can only copyright the expression of ideas

– Benefits of having a Copyright in something

– in the U.S., utilitarian is the primary benefit and function of copyright

– copyright allows the creator to profit from it by either excluding competitors or requiring competitors to pay a licensing fee

– What is the relationship between Copyright and the 1st Amendment?

– it is the government imposing restrictions on dissemination

– fair use is the doctrine that deals with the tension between copyright and the 1st amendment

History of Copyright

– Copyright was originally a form of censorship

– before the printing press, there was no need for Copyright

– Early English Copyright

– the house of commons eventually passed the statute of Anne; it was the first Anglo-American Copyright statute

– the statute granted authors the exclusive right to print their works for up to 28 years

Millar v. Taylor

– Millar contended that English common law protected an author’s natural right of property in his literary work, separate and apart from any limited statutory scheme

– the court agreed

– it borrowed heavily from the philosophy of John Locke

Donaldson v. Beckett

– copyright could only exist by statutory decree, and it restored the Statute of Anne’s control over the existence and duration of an author’s exclusive right to print her works

– it overruled Millar

– Modern American Copyright

– the framers gave Congress explicit authority to pass copyright legislation in the Constitution

– the first american copyright statute, passed in 1790, borrowed its basic structure from the Statute of Anne, giving copyrights with initial and renewal terms of 14 years to the authors of “maps, charts, and books”

– Copyright Today

– Digital Millennium Copyright Act

– increased protection for copyrights

– Sonny Bono Act

– increased the duration of copyright to the life of an author plus 70 years

– TRIPS Agreement

– committed its adopters to minimum standards of copyright protection and created procedures for resolving disputes with countries accused of providing inadequate protection of copyrightable matter

– Copyright Policy/Justifications

– the point of copyright is to convert into property the intangible aspects of works that cannot be physically possessed

– Copyright as Economic Incentive

– copyright helps authors profit from the creation and sale of their works, and society benefits by gaining access to works that would never have been written or distributed

– copyright, however, permits authors to restrict dissemination of their works, and this robs society of the benefits that come from wider distribution

– non-excludability and non-rivalrousness explain copyright’s existence and limits

– non-rivalrousness: consumption of a good by one person does not diminish consumption of the same good by another person

– Copyright as Fairness and Justice

– copyright must not allow authors to claim copyright in things they did not create

– copyright must leave future authors access to and use of existing works roughly equivalent to the opportunities enjoyed by previous authors

– Theoretical Justifications for Copyright

– reward creativity

– utilitarian

– it serves a useful social purpose

– promotes creativity

– promotes dissemination

– Lockean theory

– natural rights

– if you make something from nothing, it should be yours

– Hegelean

– personhood

– if you make something creative, you put something of yourself into it

– so you have some interest in making sure it is not abused

– “moral rights”

– there is something immoral about doing certain things with the creative work of others

– utilitarian drives policymakers, but Locke’s theory resonates more with people

Chapter 2: Copyrightable Subject Matter

– Section 102(a) of the Copyright Act extents protection to ”original works of authorship fixed in any tangible medium of expression.”

– Section 102(b) contains

right in them

– D transformed those reproductions from transparencies into digital files

– holding:

– distinguishable variation is not supplied by a change of medium, as production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection

– P, by its own admission, has labored to create slavish copies of public domain works of art

– rule:

– there is a broad scope for copyright in photographs because a very modest expression of personality will constitute sufficient originality

– this is one of the rare cases where a photograph was found to be not copyrightable

Gracen v. Bradford Exchange

– facts:

– Wizard of Oz case

– Bradford had a contest to submit paintings of Dorothy to see who would do the plates series

– instructions for the contest: “we do want your interpretation of these images, but your interpretation must evoke all the warm feeling the people have for the film and its actors. So, your Dorothy must be very recognizable as everybody’s Dorothy.”

– people liked Gracen’s the best, and she was offered a contract to do the series

– she didn’t like the terms of the contract, didn’t sign it

– Bradford offered it to another artist, Auckland, and gave him Gracen’s painting to help him in doing his painting of Dorothy

– issue:

– whether Gracen had an implied copyright, and whether or not her work was sufficiently original

– holding:

– artistic originality is not the same thing as the legal concept of originality in the Copyright Act

– a picture created by superimposing one copyrighted photographic image on another is not original

– you have to sufficiently differentiate between the underlying and the derivative work to avoid entangling subsequent artists depicting the underlying work in copyright problems

– Grancen’s painting is not an original derivative work within the meaning of the Copyright Act

– Test for derivative works

– a derivative work must be substantially different from the underlying work to be copyrightable

– Policy: derivative works have to be substantially different to prevent harassment on the part of the copyright holder for the derivative work against potential infringers

– it would be hard to tell if someone copied from the original or the derivative work if they were too similar