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Copyright
University of Connecticut School of Law
Wilf, Steven R.

COPYRIGHT
Fall 2016
Professor Steven Wilf
 
Introduction
Copyright Clause → To Promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
Since 1976 Act → Once and original work of authorship is fixed in a tangible medium of expression, work is protected by federal copyright law
Dichotomy between expression (protected) and ideas (not protected)
Can be difficult to separate ideas from expressions (compilations)
Law exists to provide marketable right for creators and distributors of copyrighted works, which in turn creates incentive for production and dissemination of new works
Utilitarian purpose to copyright (U.S.)
Tensions between pecuniary, economic side of copyright and cultural need to create robust promotion of ideas
European approach is different → author’s natural right in her creation is principal justification for copyright protection (moral rights)
Three prongs to prove infringement
1. Identify substantial similarities
2. Show defendant had access to copyrighted materials
3. Copying of original, protected materials
Copyright subject matter
Section 102(a) → Works of authorship include: literary works; musical works; dramatic works; pantomimes and choreographic works, pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works
Copyright exclusive rights
Section 106 → (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Public Domain
Includes works for which copyright protection has expired
Affected by duration of copyright, whether copyright protected viewed narrowly or broadly (the latter limiting works in public domain)
Also includes aspects of copyrighted works that are not protected
Copyright may not cover everything drawn from a play, literary work, etc.
Ideas, unoriginal expressions in public domain
Technology → affects distribution, production, and complicates balancing of authors’ rights and users’ rights
Also changes roles of intermediaries (duties, liabilities)
TRIPS Agreement (summary pg. 39)
Premised on notion that IP protection is a trade issue
Failure to protect IP distorts flow of trade and undermines welfare benefits flowing from GATT (international, multilateral trade system)
Establishes minimum standards for IP protection (comply with Berne Convention standards, etc.)
Enables signatories to use WTO mechanisms to complain about other members’ Berne violations
Functionality & Architectural Works
Fixed in tangible medium → when works embodiment in a copy or phonorecord, by or under authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period more than transitory duration
Live transmissions should be regarded as fixed if being recorded simultaneously with transmission
Section 1101(a) → prohibits fixation transmission of live musical performance without consent of the performer
Architectural Works, 17 U.S.C. §101 (AWCPA)
Defined as “the design of a building as embodied in any tangible medium of expression, including building, architectural plans, or drawings”. Includes overall form, arrangement and composition of spaces and elements in design
Amendment makes buildings protectable along with blueprints and designs
Yankee Candle Case (1998)
Court decided that shopping mall itself was larger structure, and that shop located in mall did not qualify as a building
Building definition
1. Habitable
Also covers structures that are used, but not inhabited, by humans
2. Permanence
3. Is enclosed
U.S. has created per se categories (only country to d

.
Proposed test →  Functional objects are not copyrightable, while creative objects are (separate instead of combining protection)
How to determine separability?
Physical separability → can we physically separate elements?
Conceptual separability → Purpose of why it was made/ made to be expression
How it is viewed / seen as expression
The final two are known as conceptual separability
The three are descending order of objectivity. The last one, how it is viewed, is extremely subjective
Photography
Photographic works
Different from regular photos in that not just snapped and done
Artist/author chose where to stand, what to take picture of, how to take picture of it, lighting, composition, etc. (artistic expression)
Burrow-Giles v, Sarony (1884)
SCOTUS Oscar Wilde photo case
First case to refer to photography as an art
Court decides that so many points of light, dress, comportment, props, etc. in photo established it is a work of art/expression that was copyright protected
Mannion v. Coors Brewing Company, pg. 79
Mannion sued Coors for copyright infringement after brewing company reconstructed an image similar to one that Mannion took of Kevin Garnett
Court states that a photograph may be original in three respects, which are not mutually exclusive:
1. Rendition → aspects including angle of shot, light and shade, effects, etc. (not what is depicted but how it is)
2. Timing → may create a worthwhile photo by being at the right place at the right time
Limited in that no rights conferred over similar subject matter depicted in subsequent photos (catch of day pic does not protect against subsequent catch photos)
3. Creation of the subject → photo may be original to the extent that the photographer created the “scene or the subject to be photographed”