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Copyright
University of Dayton School of Law
Schaeff, B. Joseph

Copyright Outline

Professor Schaeff: Spring 2015

The Elements of Copyrightable Subject Matter:

17 U.S.C. § 102. Subject Matter of Copyright: In general.

(a) Copyright protection subsists, 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. Works of Authorship include (but are not limited to) 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; (§101 definition; merger doctrine)

(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 a work.

o Protects authors’ creative expressions of their ideas (as opposed to the physical manifestation of an idea or invention)

o One does not need to register with a government body to acquire protection, but there are important advantages to registration

o Enjoys several exclusive rights: (1) make copies of copyrighted work; (2) prepare derivative works (3) distribute copies of copyrighted work (4) perform and display the copyrighted work publicly

o Term – copyright’s term is life of the author plus 70 years, or if the copyright is owned by a corporate entity, 120 years from creation of the work or 95 years from publication, whichever expires first

o Others may make fair-use of the copyrighted material

o Independent creation IS a defense for copyright infringement

o COPYRIGHT LAW IS EXCLUSIVELY FEDERAL AND IS SET FORTH IN TITLE 17

o Sisyphean exercise – pointless or interminable activities

FIRST INQUIRY TO USE ON AN EXAM QUESTION INVOLVING COPYRIGHT ISSUES

Copyright protection arises automatically so long as a given “work of authorship” meets three broad criteria:

(1) Work must be original (sine qua non – that which not)

(2) Must be fixed in some tangible form

(3) Must consist of expression, rather than ideas

§ Certain exclusive rights- to reproduce, distribute, and publicly perform or display copyrighted “works”

§ These exclusive rights are subject to important limitations designed to ensure that the public policies that guide copyright law benefit readers, consumers and new authors as well as existing authors.

NON-DESCRIMINATION PRINCIPLE

Judges and lawyers should not be the judges of what the social benefits of the art, or whether or not it is art itself

· It is particularly tough for lawyers and judges to really say that one piece is considered art, and another isn’t

· Federal Congress enacts copyright law, which cannot come without constitutional permission

Exam Ready Rule: Something is afforded federal copyright protection under the Copyright Act of 1997 if it is (1) an original (2) work of authorship (3) fixed in a tangible medium of expression.

1. ORIGINALITY

This is the first prong of the test to decide whether or not something is copyrightable.

17 U.S.C. § 102. SUBJECT MATTER OF COPYRIGHT: IN GENERAL

(a) Copyright protection subsists, 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. Works of authorship include [but are not limited to] 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.

Feist – Originality = (1) an independent creation + (2) modicum of creativity

-Often tested at trial

Exam Ready Rule: Originality requires that the work be (1) an independent creation that (2) consists of some low modicum of creativity.

2. FIXATION

§ 101 Definition – A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The second prong in the test of whether or not something is copyrightable.

– The term “copy” used to refer both to the legal right to publish a book and to the physical manuscript itself

-Publishers typically owned both the right and the object

-Modern copyright is organized around the intangible rights in the author’s creative output

-Output requirements constituted that the creation be in tangible form before those intangible rights attach

-Creative work must be “fixed” in what copyright law today refers to as “tangible medium of expression” (formerly “copy”)

-Serves copyright policy in a number of ways:

(1) Encourages authors to reduce their expressive output to forms easily and cheaply distributed

(2) Evidentiary purpose – allows courts and prospective licensees of the work to confirm that the author has produced a wor

something contains generally repeated elements (thing of the movie Scream and how they play on the repeated elements of a horror film)) – pictoral, graphic, and sculptural works doctrine

“The congress shall have the Power. . . To promote the Progress of Science and useful Arts, by securing for limited Times and Authors and Inventors of the Exclusive Right to their respective Writings and Discoveries.” — U.S. CONSTITUTION, ARTICLE 1 (S) 8, (CL.) 8

Originality:

– Originality

o The second requirement for copyright ability is that a work be an “original work of authorship” 17 U.S.C section 102 (a)

o From an economic perspective, the mere copyist has supplied nothing to justify the cost of a grant of copyright; from a non-economic perspective, the copyists has supplied nothing of his or her “own”

o Courts found an originality requirement implicit in the statutes, and un the underlying language of the constitutional grant of authorship to enact copyright laws

– According to the legislative history, the phrase original works of authorship which is purposely left undefined, was intended to incorporate without change the standard of originality established by the courts under the 1909 act

o Under the 1976 Copyright Act, no prior assessment of the work’s level of originality is required; instead, copyright automatically subsists in an original work of authorship at the time the work is fixed in a tangible medium of expression

o Because copyright law requires simply that a work not have been copied, a copyright owner cannot obtain relief against another author who independently generates expression that replicates the copyright work

§ Instead, a second comer who is an independent creator may receive her own copyright

——————-SYNTHESIZING OF THE RULES————-

EXAM READY RULE FOR COPYRIGHTABILITY: A valid copyright is granted when it is an original work of authorship fixed in some tangible medium of expression. A work of authorship, as exhibited by §102 of the CRA, is original when it is an independent creation containing some low modicum of creativity. Feist. It is fixed when the author embodies that expression in a sufficiently permanent form to permit its communication of that expression for a period of time that is more than just a transitory period of time. The issuance of a certificate of federal registration of the work is a prima facie case of a valid copyright, required to bring a copyright infringement cause of action.