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

INTRODUCTION TO INTELLECTUAL PROPERTY OUTLINE                   Fall 2009 Professor Armstrong
Unit 1: Introduction to Copyright Law
1.      Introduction
1.The Constitutional Foundation
United   States Constitution, 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 to their respective Writings and Discoveries[.] 2.Minimum Requisites of Copyrightability
Baker v. Selden
RULE OF LAW: There can be no copyright protection in ideas.    Therefore when the use of an idea requires copying the plaintiff’s expression, the expression will not be protected (the merger doctrine). Under the merger doctrine, when the subject matter of the work is so narrow & straightforward that there are only a limited number of ways to express it, there may be no copyright in any one form expressing it. To provide otherwise might enable a person to obtain a de facto monopoly in the subject matter or idea, by obtaining copyright in all the alternative forms of expressing it.FACT SUMMARY: Selden took requisite steps for obtaining copyright of a book exhibiting a peculiar system of bookkeeping and filed a suit against Baker for alleged copyright infringement for using a similar plan in his books. Selden was able to show Baker had access to his work + substantial similarity to his work (usually prima facie evidence of copyright infringement).
Feist Publications v. Rural Telephone Service
RULE OF LAW: The 1976 Copyright Act identifies three requirements for a copyrightable compilation (note collections are not copyrightable per se, some collections will not be sufficiently original to trigger copyright protection):1) the collection and assembly of pres-existing material, facts, or data; 2) the selection, coordination, or arrangement of those materials; 3) and the creation, by virtue of the particular selection, coordination, or arrangement, of original work of authorship.
Furthermore, even if a work qualifies as a copyrightable compilation, the copyright only protects the author’s original contributions, not the facts (facts are never original). A compilation is only copyrightable to the extent it features, an original selection, coordination, or arrangement.
FACT SUMMARY:  Rural, a telephone service company that issues a local telephone directory sued Feist, a publishing company that specialized in area-wide directories, for copyright infringement for using their white pages listings. The selection, coordination & arrangement of Rural’s white pages did not satisfy the minimum standards for copyright protection.
NOTE:In Feist, the Supreme Court stressed that the originality requirement must be satisfied in every case. A showing that a great deal of labor (“sweat of the brow”) went into the creation of the work could not serve as a substitute for originality.
3.Statutory Protection for Copyright
Introduction & Short History (see Casebook)
Wheaton v. Peters 
·         RULE OF LAW: NO Copyright protection for Supreme Court decisions.
The Court made 3 major decisions that affected copyright law:
·         the Court rejected Wheaton’s contention that he possessed a perpetual copyright in his Reports under the common law of Pennsylvania
·   Though Wheaton may have complied with Pennsylvania procedures on securing a copyright, the Court held that the common law of Pennsylvania did not address the issue of copyrights and therefore the state could not grant any protection to literary property.
·         The Court also rejected Wheaton’s argument that he had complied with the applicable provisions of the federal copyright law and therefore was entitled to copyright protection. 
·   The 1802 copyright law required a series of 4 steps to secure a copyright
·         the Court held that no reporter could have any copyright in the written opinions issued by the Court and that the Court could not grant such a right to any reporter.
·   Protects the free public flow of information
FACT SUMMARY: Case centers on whether Supreme Court decisions which were public documents, could be copyrighted. Wheaton sued Peters, his successor, for violating the copyright Wheaton obtained for his twelve volumes (Wheaton’s Reports) of Supreme Court decisions. Peters had published and sold a book (Condensed Reports) which contained every Court decision from its inception to 1827. Wheaton charged that the Condensed Reports contained all the reports of cases in the first volume of Wheaton’s Reports without any significant abbreviation or alteration and that the publication and sale of this work infringed on his copyright. Wheaton sought an injunction to stop the sale of the work.
2.      Copyrightable Subject Matter
1.Copyright Act of 1976 
·         17 U.S.C. § 102  provides that copyright subsists “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.” Works of authorship include the following categories:
      (1) literary works;
      (2) musical works, including any accompanying words;
      (3) dramatic works, including any accompanying music;
      (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.
      (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.
The Originality Requirement: A work must be original in order to qualify for copyright protection. This means: 1) that the author must have engaged in some intellectual endeavor, and not just copied from the pre-existing source; and 2) that the work must contain a minimal amount of creativity.
Under this rule, de minimis “works” such as words, short phrases, slogans, and the like are not protected. Because facts are discovered rather than ceated, they are not subject matter for copyright. Only the author’s original means of expressing the facts can be protected.
The Fixation Requirement: Federal copyright attaches only to the intangible work of authorship, not the physical manifestation of it, but the work only qualifies for federal copyright protection once it has been fixed in tangible form- either copies or phonorecord.
2.Selected Forms of “Authorship”
§               Burrow-Giles Lithographic Co. v. Sarony 
RULE OF LAW: A photograph may be afforded copyright protection, as long as it is representative of the original intellectual conceptions of the a

sney Productions v. Air Pirates 
RULE OF LAW: Since comic characters have physical and conceptual qualities and are thus likely to contain some unique elements of expression, copyright protection is not precluded.
FACT SUMMARY: Case involves the admitted copying of Disney cartoon characters in D’s adult “counter-culture” comics.
NOTE: Today, the prevailing rule is that fictitious characters are entitled to separate copyright protection (from original work) if the character was distinctly delineated in the P’s work.
4.      Maps
§               Mason v. Montgomery Data, Inc. 
RULE OF LAW: The merger doctrine does not apply when the idea is capable of a variety of expressions. Furthermore, under Feist, the selection, coordination and arrangement of the information depicted was sufficiently creative to qualify the maps as original compilations of facts. The maps also possess sufficient creativity to merit copyright protection as pictorial & graphic works of authorship.
Note: Originality does not require novelty, ingenuity, or aesthetic merit; only that the work was independently created & possesses some minimal degree of creativity FACT SUMMARY: P sued D for infringing P’s copyrights in real estate maps. P testified that he used substantial judgment and discretion to reconcile differences btw sources, to select which features to incl. in the final map sheets, and to portray the info in a manner that would be useful to the public. D argued that the maps were not copyrightable under the idea expression merger doctrine, but the court & even if merger didn’t apply, the maps were not original, the court disagreed. Court disagreed w/ D.
5.      Useful Articles – © Act §101 provides that “ the design of a useful article … shall be considered a pictorial, graphic or sculptural work [& thus copyrightable) only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” (The intent of the artist to mass-produce & commercially exploit the design is irrelevant)
§               Mazer v. Stein 
RULE OF LAW: Patentability does not bar copyright as works of art. Absent copying there can be no infringement of copyright in this case … may not exclude others from using statuettes of human figures in table lamps; they may only prevent use of copies of their statuettesFACT SUMMARY: Controversy involving statuettes of male/female dancing figures. Although they were copyrightable as works of art, the statuettes were intended for use as bases for table lamps. D contended that the statutes were not copyrightable b/c P intended to and did mass produce them as lamp bases (D asserted