Copyright Outline
Durham
Spring 2011
I. Introduction
A. Copyright has its origins in Const. Art. I. § 8, Clause 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”
1. Public benefit theory—copyright law is about capturing the value of the works created, incentive to create more works, public benefits in long run
2. copyrighted works are works of expression… can be very person, highly individual creations and closely linked to character and personality of the author
3. US intellectual property rights—interest of public is at heart, SC has held that the ultimate beneficiary of laws is the public
i. want innovation to remain bountiful
ii. give rewards to creative ppl , copyright incentivizes artists to create new works
B. Current fed copyright law provides protection for life of the author of a work for life +70 [ Sonny Bono Act], see Copyright Term for History
C. Federal Statutory copyright protection is available to both published and unpublished works, beginning on the date the work is first fixed in tangible form
1. Copyrights only apply when fixed in a tangible medium
ex) Mozarts music in his mind, not protected, once put on paper, yes protectable, become tangible physical embodiment
2. The work protected is the intangible thing, however, not the tangible thing, so in the Mozart example, not the paper itself
D. Standards for obtaining copyright, originality and fixation, are much lower than those for obtaining a patent.
1. Federal copyright protection arises automatically as soon as qualifying work of authorship is fixed in a tangible medium of expression
E. REMEMBERà copyright only prohibits copying, independent creation does not infringe
F. Copyright is also limited in ways that it does not prohibit others from copying, discussing or using ideas [ idea of exercise of free speech and press]
1. fair use defense protects infringers from liability in specific statutory situations and when general public interest is at stake
in sum: copyright applies to original works of authorship… doesn’t matter the quality, doesn’t matter if its drawn from life or if its an ad, the arbiter of the quality is the market place and not the judicial system…. © Rights will be worth something if ppl wish to buy it… © rights are exclusive rights regardless if ppl wish to buy it, but they wont be worth much… there are works that can be protected by © but are worth very little, aka like a grocery list posted on a websit
USC 102 Subject Matter of Copyright
“in original works of authorship fixed in any tangible medium of expression form which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”
Works of authorship include”
(1) Literary works
(2) Musical works
(3) Dramatic works
(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
** absent from 102, is any mention of quality.
(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.
Bleistein
§ Not a role for judges or courts to be distinguishing between good or bad art
§ work had to have some value or why would someone copy it?
§ Work may not have value at first but could obtain value later
§ Is it just ad? Just bc it is an advertisement doesn’t mean it isn’t’ art
§ Drawn from life? Irrelevant, some great art drawn from life
o Distinction, can copy the original ( life) but cant copy the copy of life
§ Dissent
o Constitutional limits to what is copyrightable subject matter
o Simply ads , only purpose is to advertise and no artistic quality
II. Fixation
A. fixed in any tangible medium of expression
§ 101 A work is “fixed” in 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 purposed of this title if a fixation of the work is being made simultaneously with its transmission.
What is a Copy : material objects, other than phonorecords, in which a work is fixed by any method known or later developed, and from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of machine or device. The term “copies” include the material object in which the work is first fixed.
Williams
§ Video game case
§ Look at the display, audiovisual aspects of the work
§ D created basically the same game, argued that the audio visual display was not “fixed in a tangible medium of expression” bc the game generates a new visual display each time and the play is co author with the game
§ COURT: you don’t have to copy everything to infringe on copyright
o Where is fixation here? ROM chips (memory chips)
o Video game displays satisfies the statutory definition of an orig
tional sale of the painting, transferred the CL copyright and right to reproduce
o P took no steps to withhold or control that right
o So if you sell a painting and nothing was said by anyone, you also transfer the right to reproduce it
o Rule at the time, but today rules are diff
§ Look to intent of parties
IV. Authorship
A. No work of authorship is entirely the work of one person ; at some level it is the product of individual effort and the culture that produced the individual effort
B. copyright law wants to single out the person who is the main author—who made the most contribution
Lindsay v. Titanic
§ Did the fact that he didn’t take the pictures mean he isn’t the author?
o NO, that will not defeat his claims of having “authored” the illuminated footage
o He made the storyboards, specified directions, the final footage was a product of his “original intellectual conceptions”
§ There may be essential contributions to the work but that doesn’t make the person the author
C. Copyright Act 101:
A Joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
1. so the joint work could be in one whole and impossible to distinguish who did what part
ex) The Ellery Queen Works à actually two sisters authors, not one, but impossible to separate
2. but in other instances you can easily distinguish two parts
ex) words and lyrics to a song, Gershwin songs— not inseparable but interdependent
3. Join the works as “tenants in common”, each other is free to exploit that work, expect no one can grant exclusive rights without agreement of other author
4. This is opposed to a collective work: a work such as a periodical issue, anthology or encyclopedia in which a number of contributions, constituting separate and independent works in themselves re assembled into a collective whole.
a. the compiler has copyright to the collect work but the authors of the copyrighted stuff in the collective work retain their individual copyrights
b. the compiler has a right to reproduce the collected work… just not in any other context… only in this particular collected form
