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Introduction to Intellectual Property
University of Cincinnati School of Law
Armstrong, Timothy K.

Intro to Intellectual Property Tim Armstrong Fall 2016

Copyright Law


Constitutional Foundation: Article I, Section 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 of their respective Writings and Discoveries

Known as Intellectual Property Clause or Progress Clause
When using the word “Science” it means copyright, not actual science


Congress can create “exclusive rights” but the Constitution does not say what those exclusive rights are; it is whatever Congress decides it to be
Congress can create, but they are not required to do so. There are no natural intellectual property rights. Congress grants those rights to promote learning
Too much intellectual property protection can be just as harmful as too little protection (choke off access to information)

Raise costs for people to build off earlier works/use works or ideas
Strive to balance between past creators and future creators

Justification: need to give creators an incentive to create. Cannot have a utilitarian approach because works are built upon other works and nobody creates from nothing.

Minimum Requisites of Copyrightability

Idea and Expression

Baker v Selden

Facts: Selden obtained a copyright of the book “Selden’s Condensed Ledger or Book-keeping Simplified” in 1859. Baker created a similar plan but of a different arrangement of columns and headings. Selden brought evidence that Baker had access to Selden’s work and had copied parts of his forms (substantially similar)
Result: Any author has the right to express the one or explain the use of methods or scientific, in his own way. Baker may have used part of Selden’s designs, but the proof fails to show that he violated the copyright since he described the forms in his own way

Novelty of the art or thing described or explained has nothing to do with the validity of the copyright
17 U.S.C. § 102(b)—Subject matter of copyright; 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
Basis of the idea/expression dichotomy—Ideas cannot be copyrighted.The expression, form, and words used to state an idea can be.

“Thin” copyright—copyright covers only the exact words used in the copyrighted material. Any variation gets you out from under the copyright.

Original Works of Authorship

There is no statute that defines “originality”

Feist Publications v Rural Telephone Service

Facts: Rural and Feist published telephone directories in the form of yellow and white pages, but they had different geographic ranges. Feist offered to pay for the right to Rural’s list but Rural refused and Feist used the information anyways
Result: A factual compilation is eligible for copyright if it features an original arrangement of fact, but the copyright is limited to the particular selection or arrangement. Rural’s white pages do not satisfy the minimum standard

Facts can’t be copyrighted, but the compilation can be copyrighted.
Original means the work possesses a minimal degree of creativity (low bar)

Originality requires independent creation plus a modicum of creativity

Key to this is the second requirement which shows that the way in which the information is presented must be original in order to meet the requirement.
17 U.S.C. §103—Compilation and derivatives:

Copyright extends only to the new elements the compiler added, not the material itself

There are 2 senses of “original”:

Originating with the author

New or novel, some minimal level of creativity

Key points:

Minimal constitutional standard of originality that must be met for copyright protection
The “sweat of the brow” doctrine is dead
Introduces a big doubt as to whether or not databases can be copyrighted. Most companies use trade secret protection for databases

Statutory Protection for Copyright

Wheaton v Peters

Facts: Wheaton authored 12 books of reports on Supreme Court cases. Peters published and sold Condensed Reports of Cases in the Supreme Court which contained the whole series of decisions of the court. Congress created he author’s rights in 1790.

Result: The only right of copyright is the one created by Congress

The Copyright Act of 1976 had an effective date of 1/1/78. The 1909 Copyright Act is still around though.

Copyrightable Subject Matter

Copyright Act of 1976

Two fundamenta

ith Hoehling’s book a little.
Result: Hoehling’s material involves factual sequences from an historic event so the sequence is not copyrightable, only verbatim reproduction would constitute copyright infringement.

There were different themes over the interpretation of an historic event
Scenes-a-faire doctrine: No copyright for clichés (expressions that are standard, stock, commonplace). Basic plot and character traits are not subject to copyright. They are like ideas and should be open to anybody.

7th Circuit (Posner): A copyright owner cannot prove infringement by pointing to features of his work that are found in the defender’s work as well but are so commonplace, standard

Merger doctrine: If there is only one way or small number of ways to express a fact about the world, the idea and the expression are said to merge. You don’t get to copyright the expression that is necessary to communicate a fact.

Ex: Writing a textbook about geography of earth. “The circumference of the Earth is about 25,000 miles” How else can you express this fact? It’s hard to do so without using those exact words or something close to it. You don’t own the fact and then you probably don’t own the expression used to describe that fact.

***Last day of class, INS v AP (come back to question of news org protecting its work)***

Walt Disney Productions v Air Pirates

Facts: 17 recognizable Disney characters were copied by Air Pirates when making a cartoon. Only difference from Disney was the adult themes.
Result: The Disney characters are protected because they contain unique elements

There is a distinction between literary characters and comic book characters; it is much easier to get protection on a comic book character because of

Comic book character has physical and conceptual qualities that make it more likely to contain unique elements of expression