Select Page

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

Copyright Depoorter Fall 2016
Chapter 1: introduction to copyright
– Copyright is codified in Title 17 of the U.S. Code. The authority for Congress derives from Article 1 of the Constitution (Intellectual Property Clause). -> Everything is indicated as 17 U.S.C. §section-number.
– The copyright act does not require registration as a condition of copyright protection and it is not required that any notice of copyright is placed on the work itself. When the work is fixed in a tangible medium of expression, copyright law protects that work. (Chapter 3)
– Duration of the copyright protection (Chapter 3):
            For a person: for the life of the author + 70 years.
            For a corporation: 95 years from publication or 120 years from creation,
            whichever term is shorter.
Chapter 2: Authors, Writings and Progress
Section 102 of the Copyright Act describes what subjects are matter of copyright:
            (a) Copyright protection subsist, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, 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.
            (b) In no case does copyright protection for a 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.
This states 3 requirements for copyrightable subject matter:
Is must be an original work of authorship.
The work must be ‘fixed’ in a tangible medium of expression.
Copyright protection does not attach to every element of a work.
For a work to be original, there has to be some kind of added creativity.
Feist Publications, Inc. v. Rural Telephone Service Co.
– Facts are not copyrightable because they don’t owe their originality to an act of authorship! -> It is a difference between creation and discovery.
But compilations of facts generally are. Compilations means that the author chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices, as long as they are independently made by the ‘author’ and entail a minimal degree of creativity, can be protected by copyright.
Burrow-Giles Lithographic co. VS. Sarony: Sarony made copies of pictures and spread them. Sarony said it is unconstitutional to have copyrights on photos. Copyright is on writing/maps, photos are not writing. This was dismissed; pictures are also part of copyright. Everything is included by which the ideas in the mind of the author are given visible expression.
Second argument of Sarony was that photos are not original but mere mechanical reproductions of a physical object and shows no creativity and originality. The court identified in this a composition, the way he was dressed, placed etc. When is a photo original? -> Intellectual invention, move from mechanical reproduction to something with an intellectual invention
Mannion v. Coors Brewing Company
Three elements are protectable by copyright on photos:
1 Rendition: technical aspect. Did you do something creative? If it is functional there is no copyright. Is it transformative? Not particular what is photographed, rather how it is depicted.
2 Timing: being in the right place on the right time. The underlying action it self is not protected by copyright, it is the picture itself that is protected. (A picture of a bear catching a fish; another photographer can take a picture of a bear catching a fish, but he can’t use someone else’s picture of a bear catching a fish)
3 Creation of the subject: original in creating the scene or the subject.
Fine Arts
Bleistein VS Donaldson: The plaintiff argued that the ‘posters’ Donaldson created were not art because they were functional as advertisement and that is not art. Copyright protection only reaches on art. They court decided that a picture is nonetheless a picture and nonetheless a subject of copyright that it is used for an advertisement.
Prints and labels are not seen as art. Everything else is art; it is an unrestrained decision.
Reproductions of fine art
Alfred Bell & Co. v. Catalda Fine Arts, Inc.
There cannot be copyright on a Public Domain, there is freedom to copy the original (you can paint a surrounding, but not copy the painting of the surrounding). But not free to copy the copy, there is a copyright on the differences from the original. People are still able to copy the original.
Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.:
Toyota hired Meshwerk to make an digital reproduction of a car for an advertisement. Meshwerk asserted that is had contracted for a one-time-use but Toyota kept using is.
Is it an independent creation or a copy of Toyota’s work? There is no additional creative work from Meshwerk; they copied the car of Toyota exactly, so there is no copyright protection. The fact that a work in one medium has been copied from a work in another medium does not render it any the less a copy.
Is digital imaging/modeling protected under copyright? Yes, it is seen the same as a photograph. There has to be creative choices/features in the work.
There can be copyright on software.
This is a negative requirement, some items are excluded from copyright. Copyright and patterns does not protect ideas, procedures, methods of operation, but an expression may be (17 U.S.C. §102).
Baker v. Selden:
The copyright protection for a book explaining an art or system extends only to the author’s unique way of explaining the art. The art itself is not protected by copyright because it wouldn’t be useful to users of the art.
A.A. Hoehling v. Universal City Studios, Inc.:
Theories on historical events are not protected by patterns or copyright, neither as certain interpretations on historical events. Also Scenes à faire: (something that became ordinary, familiar, common way to do it. For example, Hitler greet) Incidents, characters or settings that are as practical matter indispensible from a movie cannot be protected.
How to draw the line between ideas and expressions?
There are 3 categories of unprotect able subjects:
1 Animating concept
2 Functional principles or solutions
3 Fundamental building blocks
Has to be fixed in a tangible

ork specially ordered or commissioned for use as a contribution to a collective work, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Community for Creative Non-Violence v. Reid
Reid created a sculpture on commission for the Community. He claimed, because he was not employed, he owned the copyright. Under common-law agency principles, one who creates an artwork at the directive of another retains copyright upon it unless that other had employed the artist. There can be a joint work though, if the company sufficient contributes to the work.
Chapter 4: protected Works and Boundary Problems
You have to distinguish different kind of works because they are all protected different under copyright law. §102 of the Copyright Act gives the different categories, with included they mean illustrative and not limitative:
Literary works
everything that is expressed in words, numbers or other verbal or numerical symbols or indicia (books and poems but also computer program or database etc.)
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic and sculptural works
Motion pictures and other audiovisual work
a series of related images. Live-action footage but also animation. With or without sound. With the intent to be shown via a machine or device.
Sound recordings
Architectural works
only non-functional or monumental structures and artistic sculpture or decorative ornamentation or embellishment added to a structure.
They are further explained in §101 of the Copyright Act.
Find the difference between a useful article and a functional article:
Useful: intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. (fashion items, part of them do get copyright protection) .
Functional: If the utility overrides the art, there is no copyright protection. (section 101). You must be able to separate them.
A. Useful Articles with pictorial, graphic or sculptural aspects.
If they are protectable under copyright law, depends on the extent to which a product’s expressive aspects are separable from its useful ones.
Mazer v. stein
Stein made a female figure and copyrighted it as a work of art. Then made it into a lamp and mass production. Mazer made the same lamp and argued that it is not a work of art but a utilitarian product.
You need to be able to separate the artistic component from the utilitarian component. So in this case the sculpture part is copyright protected.