Select Page

University of California, Hastings School of Law
Depoorter, Ben W.F.



FALL 2012


a. Justification for Copyright

i. Copyright refers to the exclusive rights granted to an artist pursuant to Article I, section 8, Clause 8 of the United States Constitution over the reproduction, display, performance, distribution, and adaptation of his work for a period prescribed by statute.

ii. U.S. Constitution, Article 1, Section 8

1. 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.

2. § 102 – Subject Matter

a. Literary works;

b. Musical works/sound recordings;

c. Dramatic works

d. Pictorial works

i. If you own a copyright of a book, you are the only one who can:

1. Reproduce

2. Distribute

3. Publically perform

4. Publically display

5. Adapt

6. Digitally perform and sound record

3. § 106 – Exclusive Rights

a. The right to reproduce the work

b. Prepare derivative from the work, and

c. Distribute copies publically

d. Display the work publically

e. Perform the work publically

iii. Purpose of Copyright

1. Promote progress

a. Without Copyright law, authors have a diminished incentive to produce works.

2. Give rights to the public

a. Must give balance between the rights of owners and rights of public

iv. Moral Rationale

1. Support based on the fundamental moral value inherent in the work it sold

2. Person owns his/her work regardless of effort required.

b. Economic Justification

i. Production costs of information goods:

1. High fixed costs: thinking, writing the books, recording the album

a. If we only had copies, there will be no one left to invest on original works

ii. Copyright creates an incentive for people to make creative work knowing they would be protected

1. By making works into private property, we give an incentive to manage, maintain, and improve the works.

2. Copyright holders will preserve copies of old works, devise ways to improve works, and seek new markets for works.

c. Threshold Requirements for a Copyright

i. Originality

ii. Idea-Expression

iii. Fixation

iv. Types of Authorship

d. What is NOT protected by Copyright?

i. Ideas, facts, procedures, processes, systems, concepts, principles;

ii. Discoveries and inventions; or

iii. Trademarks


a. Authorship

i. Feist Publications, Inc. v. Rural Telephone Service Co.

1. Facts: Rural Telephone published a typical telephone directory as a condition of its monopoly franchise. Feist Publications was a publishing company specializing in area-wide telephone directories. Feist published a directory that covered 11 different telephone service area in 15 counties and contained 46,878 white page listings, compared to Rural’s 7,700 listings. Feist approached the 11 northwest Kansas telephone companies and offered to pay for the right to use their respective white pages listings. When only Rural refused to license its listings, Feist used them without their consent. Of the 46,878 listings in Feist’s 1983 directory, 1,309 of those were identical to Rural’s white pages. Rural sued for copyright infringement arguing that Feist could not use Rural’s information from their white pages for their directory.

2. Holding: To be copyrightable, a work must be original to the author and posses at least some minimal degree of creativity.

a. Facts are NOT copyrightable

3. Rationale: Facts, which do not originate with authors, cannot be said to possess originality. To be original, a work must be created by the author and must contain a minimal degree of creativity. If the selection and arrangement are original, these elements of the work are eligible for copyright protection. The question that remains is whether Rural selected, coordinated, or arranged these uncopyrightable facts in an original way. It did not. Rural simply took the data provided by its subscribers and listed it alphabetically by surname. There is nothing remotely creative about arranging names alphabetically in a white pages directory.

a. Rural included fake addresses in their listings to prove that their information was copied

i. Fictitious Facts are protected under Copyright law

ii. Requirements for Originality

1. Independently Created by the Author

a. Author has copyright protection only in elements of the work that she created.

i. Facts are NOT copyrightable, BUT work-containing facts may be copyrightable because they contain other elements created by the author.

b. Originality does not require that a work be unique or that it be different from preceding works. Rather, it requires that the author create the work, as opposed to copying it from others.

2. Minimal Level of Creativity

a. Low standard à requires only “some minimal level of creativity.”

i. Author need not show that she engaged in a lengthy creative process, or that she made notably creative decisions.

ii. The author need not meet any high standard of artistic creation.

iii. Burrow-Giles Lithographic Co. v. Sarony

1. Facts: A lithographic company, Burrow-Giles Lithographic Co., sold copies of a posed photograph of Oscar Wilde on which Sarony, the original photographer, had secured a copyright. Sarony sued for copyright infringement and was awarded damages. On appeal, Burrow-Giles argued that copyrights cannot be granted for photographs because they do not fall within the constitutional power given Congress to grant protection to “authors and inventors” for their “respective writings and discoveries.”

2. Holding: Photographs evidencing originality and creativity, in features such as selection of costume, pose, and so on, are copyrightable

a. Author can claim copyright only in elements that originate with her.

b. Author can use a device in a creative way to produce original work

3. Rationale: The Court found that Sarony gave his “mental conception” form by posing Oscar Wilde, choosing the lighting, wardrobe, etc. All of that made the photograph the author’s original work of art, even though the photograph was mechanically produced.

b. Fine Arts

i. Bleistein v. Donaldson Lithographing Co.

1. Facts: In order to advertise his circus, Wallace hired Bleistein (P), who produced three chromolithographs depicting Wallace in the corner, and some of the circus acts and including lettering announcing the act depicted. When Donaldson Lithographing Co. subsequently produced reduced copies of these three advertisement chromolithographs, Bleistein sued to recover penalties for copyright infringement. Arguing that chromolithographs were not entitled to protection under federal statutes allowing a copyright to the “author, designer, or proprietor . . . of any engraving, cut, print . . . (or) chrome,”

2. Holding: Chromolithographs are entitled to copyright protection even if designed for advertising purposes.

a. Non Discrimination Principle

i. Judges were not to evaluate the artistic or aesthetic merit of art when determining whether or not it should be covered by copyright law.

3. Rationale: Illustrators are creators, even when they are drawing images of real people. The Court noted that when making a reproduction of something from real life (like a person or a landscape), other artists are “free to copy the original, but they are not free to copy the copy.”

c. Reproduction of Fine Arts

i. Alfred Bell & Co. v. Catalda Fine Arts, Inc.

1. Facts: Alfred Bell & Co. had produced mezzotint engravings of paintings by the old masters. The process involved required the engraver to exercise considerable personal judgment, conception, and execution in fashioning the plates to resemble the original painting being copied. Hence, no two engravers ever produce identical “copies” of a subject painting, and the original itself is never precisely copied in all its details. Catalda used a lithographic process to produce copies of Bell’s engravings. Alfred Bell sued for copyright infringement, and Catalda argued that the mezzotint engravings were uncopyrightable because, as mere copies of the original paintings of the old masters, they lacked the requisite originality.

2. Holding: A “copy” of something in the public domain may itself be copyrighted if the author thereof has contributed something of his own thereto, that is, more than a “trivial” variation

3. Rationale: The Court noted that while you can’t copyright a work in the public domain, you can copyright a translation of a work in the public domain, and the mezzotints were similar to a translation. They were an artistic interpretation of a public domain work.

ii. Bridgeman Art Library, Ltd. v. Corel Corp.

1. Facts: Bridgeman Art Library had the rights to market reproduction of art in the public domain owned by museums and other collectors. Bridgeman reproduced

ch sounds can be perceived, reproduced, or otherwise communicated, either directly or the aid of a machine.

ii. Rationale à Serves important evidentiary function; creates a public benefit because it creates a public domain

b. Williams Electronics, Inc. v. Artic International, Inc.

i. Facts: William Electronics had three copyright registrations covering its Defender video game. One covered the computer program itself and the other two covered the audiovisual effects displayed during the game’s “attack mode” and “play mode,” respectively. Artic International, a competitor, sold a video game incorporating a computer program almost identical to that of Defender. Artic argued that since the images move around on a screen and disappear, they don’t meet the definition of “fixed.”

ii. Holding: Fixation requirement is met where the work is of a sufficiently permanent nature that it may be reproduced or communicated for more than a transitory period.

iii. Rationale: Features in a video game that repeat themselves over and over are sufficiently permanent to be considered more than transitory. This is true even though player interaction with the machine during a game causes the audiovisual presentation to change. The fixed reproduction is the memory devices.

1. There are copyright protected elements in the game:

a. Characters of the game

b. Creative decisions in all aspect of the design of the game

c. The plot of the video game

d. Audio/Sound of the game

e. The code itself

c. MAI Systems Corp. v. Peak Computer, Inc.

i. Facts: MAI license software to its customers. The terms of the license allow customers to use the software for internal information processing, but license does not extend to the use or copying of software by third parties. Peak maintains computer systems for its customers and uses MAI’s operating software to the extent necessary for repairs and maintenance. MAI argued that in order to perform maintenance, you had to run their program. That entailed making a copy of the program from the hard drive onto the computer’s RAM. Peak argued that they were not making a copy by running the software, because the image of the program on the RAM was temporary and therefore not fixed.

ii. Holding: Copying of a computer program occurs when the program is transferred to the computer’s RAM.

iii. Rationale: Loading of a copyrighted software onto a computer’s RAM creates a copy under the Copyright Act. The Court found that the image on the RAM was “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”

d. § 117 – Limitation on Exclusive Rights: Computer Programs

i. Overrules MAI Systems v. Peak Computer in the circumstances of computer repair.

ii. (a) Making of Additional Copy or Adaptation by Owner of Copy

1. It is NOT an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided

a. That such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with the machine that is used in no other manner; or

b. That such new copy or adaptation is for archival purposes only

iii. (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation

1. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale or other transfer of all right in the program.