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UMKC School of Law
Callister, Paul D.



Two Broad Theories of Copyright:

Consider a lyricist in a state of nature.How do we justify protecting their creation from copying/ uses by others?
1) Economic/ Instrumental Theory – provide an incentive to create works of art. Dominant justification in the US. Market failures to solve:

recouping the cost of creation: Problem is that, once the work is created, both the author and a potential competitor have the same cost of making copies. Thus, in a competitive market, the author will be forced to sell at cost of copying, and thus can’t recoup costs of creation à won’t create works.

there are other incentives to create—fame, prestige, recognition.
in certain cases (eg, paintings), copies will often be less good/ valuable than the original.
creator has head start over competitor.

creative works (sometimes) a public good: Eg, lyrics. Once out in society, can be memorized (nonexcludable), and enjoyed by many simultaneously (nonrival).

note that while the work itself is nonrival, their embodiment in a tangible medium (eg, a written copy) is a rival piece of physical property.

N.B. Fundamental Tension between creation and dissemination (incentives and access): giving copyright owner more control over creation/ temporary monopoly raises prices and limits access to the work (eg, through higher prices)

encouraging creation of new works a fundamental concern copyright law, but so is encourage that the works be available to the public.

2) Natural Rights Theory – since creative works are the fruit of an individual’s labor, it is your property to control by virtue of your investment in the work. Dominant EU theory.

I. Subject Matter and Standards

A. Constitutional Limits: “The Writings of Authors”

Main points:

Copyright and Patent Clause: Art. I, § 8,, cl. 8: “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.” Thus, limitations on power:

must be “to promote science and useful arts”
must be for “limited times”

not much teeth as Supreme Court upheld life + 70 years.Eldred.

rights only secured to “writings” to their “authors”.

1) “author” = “an originator or maker” (Burrow-Giles) and “writing”= “any physical rendering of fruits of mind”— very broad definitions.
2) “promote progress” defined broadly (includes commercial works—Bleistein)
3) work need only low threshold of “originality” (some modicum of creativity/ intellectual effort)
4) no qualitative assessment of merits of art (Bleistein)

Case law

– photographer Sarony takes photo of Oscar Wilde, which is copied.

rejects arguments that photographs are not “writings”, and that photographs, since only a mechanical representation of the world, not an original work of authorship.

Constitution’s “writings” interpreted broadly.Other wordless works like maps protected at time of passage.
photography involves creative choices which make Sarony an author.

– color posters for circuses argued to be outside of copyright’s realm.

dissent: commercial uses not a useful art.

B. Statutory Limitations

§ 102(a) – copyrightable subject matter in “original works of authorship fixed in any tangible medium of expression [in which they can be perceived]” Thus, three requirements:

a) “works of authorship”

section gives list of types of works that are covered—literary, musical, dramatic, PG&S, motion pictures, sound recordings, architectural works—but it is nonexclusive.
Thus, for a new medium, can argue either way:

on one hand, can note nonexclusivity of list, fact that copyright has historically been extended further and further, legislative history says didn’t want to “freeze” copyright, analogy to other types of works.
on the other, can say it’s not on the list (can draw negative inference if existed at time of statute), or that Congress should amend it if they want to extend copyright.

b) originality – see below.
c) fixation – see below.

a) work of authorship?

can debate either way.Not on the list, but the list is nonexclusive

could make strong analogy to sound records, intent not to “freeze” copyright.
but: could say this is a new sense, Congress should be left to make the policy call, chose not to include scents (in perfumes, eg).

b) originality?

satisfies low threshold by choice of ambient smell, setting to record, arrangement.Cf. Burrow-Giles.

c) fixation?

clearly perceptible for more than transitory period in physical embodiment.

1. Originality

the Feist test:“originality” = work must be i) independently created; and ii) have “minimum quantum of creativity”

minimal creativity is a very low threshold (Magic Marketing)

Magic Marketing – P wishes to protect his design of envelopes for mass mailing (marked with phrases like “Gift Check Enclosed”). D argues that the envelopes are not sufficiently original.

held: envelopes not sufficiently original. Rare example of something that does not pass low standard.

most everything will be sufficiently original under this test.Exceptions:short phrases, titles, typefaces.Three reasons not to protect such expression:

1) originality required in the Constitution
2) to protect such “building blocks” of expression would stifle the creativity of others, who might have need of them.

eg, can’t copyright a black stripe, not original and others need to use it.

3) economically, no need to give monopoly for objects with such low costs of creation.

2. Fixation

§ 101 “fixation” = there exists i) an “embodiment in a copy or phonorecord;”ii) “sufficiently permanent to permit it to be perceived, reproduced … for more than a transitory period”

copies v. phonorecords: all tangible embodiments under § 101 are either copies or phonorecords. Definitions:

“copy” =“tangible material object, other than a phonorecord, in which a work is fixed by any method now known or later developed, and able to be communicated, reproduced, etc., even if only with aid of machine”
“phonorecord” = “material object in which sounds are fixed by any method now known or later developed…”

a thumb drive with data on it, an original painting – copies
a musical score – copy
CD, player piano sheet – phonorecords.

§ 1101 – Performer’s Right of Fixation.

before §1101, performer had no federal copyright remedy against unauthorized fixation.

since fixation under § 101 must be “by the author”, recording a live performance fell outside of realm of copyright, since there’s been no fixation yet.
but state copyright law offered protection.

§ 1101 grants performer of “live musical performance” rights against unauthorized fixation, of their performances, and against distribution or transmission of said unauthorized fixation.
constitutional issues:

(SDNY 2004) – criminal provisions of § 1101 are unconstitutional.

“writings” (n

ed à noncopyrightable
2) “sweat of the brow” theory rejected

“sweat of the brow” = Lockean, AP v. INS view of copyright in compilations as derived from labor in creation

3) Originality in selection and assembly can lead to valid copyright in a fact compilation

bur here, Rural’s choices are not minimally creative à not original (recall originality = creation + minimal creativity)

4) applicable statutes track Constitutional requirements

§ 101 definition of“compilation” (= work formed by assembling of material or data, selected, coordinated, arranged in such a way that the resulting work constitutes an original work of authorship) requires originality
§ 102(b) (idea-expression) excludes facts as “discoveries”

Matthew Binder – Hyperlink copies some factual information (history, parallel citations, attorneys) of West’s published legal opinions (clearly copyrightable headnotes, syllabus, not copied). Issue: is the arrangement/ selection of these facts minimally creative?

This didn’t happen in this case. Factors:

à less creativity – if West only had choices between several binary or other constrained choices, hard to argue it’s creative.
b) selection/ arrangement is “garden variety” or “routine” choices in light of prior use à less creative. If you’re doing something similar to everyone else due to convention, hard to argue it’s creative. Not exercising creativity, but doing what you can do given prior constraints.
c) external factors/ industry convention dictating choices – eg, BlueBook standards dictate parallel citations, or fact that there are only a few reporters and you cite to all of them.

, BAPCO, ATC – database cases. Debate over whether these should be copyrightable. Following Feist, the tendency is not. Policy debate here: incentives v. access.

majority rationale:worried about giving a monopoly to the first-comer, too much control over non-copyrightable underlying facts.
dissent rationale:preserving incentive to create.

similar proposals advanced in the US.

Example: Two similar guides to 100 Best Restaurants for UT Students.Possible issues:

the passages describing the restaurants

copyrightable, but they haven’t been copied à no problem

the information (address, hours, phone number)

facts are copyrightable, and the choice to include that information, though perhaps minimally creative, is certainly “garden variety” (Matthew Binder)

choice of 100 restaurants (with 85 the same)

choice to use 100 is “garden variety”
restaurants selection is a minimally creative choice.fact that 85 were same is troubling, though D could argue independent creation or constrained choice (# of restaurants by UT Law?)

decision to target law students

probably a non-copyrightable “idea”