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University of Dayton School of Law
Reilly, Tracy

Copyright Finals Outline
Professor Tracy Reily
Fall 2010
Reily Babbling
Ø Misner “ If you steal from one its plagiarism, if you steal from many it is considered research”
Ø Competition good, restriction on competition bad
o Exam setup (2 ½ hours)
§ True false (Most true and false and multiple choice will be found in the supplement statute)
§ Multiple choice
§ Short answer
§ 1 Long Essay
Subject Matter and Standards
Ø Why do we protect CR
o To protect creative expressions of their ideas (not the ideas themselves) in whatever tangible form the expression might take so that the public can benefit as a whole from the work.
§ Granting exclusive rights to a work that would be created in their absence is a cost on society
§ Granting stronger exclusive rights than necessary to induce creation of a work however can also impose a loss to society
Ø Power to enforce a CR
o Art I, § 8, cl. 8à Congress empowered 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.”
§ Key phrase here is limited time. CR runs for the life of the author +70 years
§ CR when works for hire runs for 95 years from date of publication or 120 from date of creation. (whichever expires first)
Ø Different forms of CR material
o Sculptures
o Paintings
o Drawings
o Music
o Writings
Ø Requirements of a CR
o Work must be original (aka sin qua non) (Section 101, Subject Matter of CR)
§ No bright line definition of original but courts adopt a definition that the work must be independently created by the author and possess some minimal degree of creativity
· Again, this is a extremely low level of creativity
o Work must be fixed and tangible (Section 101, Subject Matter of CR)
§ 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 reproduced or otherwise communicated for a period of time.
§ This requirement encourages authors to reduce their expressive outputs to forms that are easily and cheaply distributed to readers and other consumers, thereby supporting the distribution of creative output through society
§ Fixation serves as a jurisdictional purpose, by reserving federal statutory copyright exclusitivity for specifics
o The work must consist of expression rather than ideas
· Problem with sweat of brow-extends CR protection way to far
§ Compilation protection is limited à only entitled to protection in the original, expressive contributions that you make to a work of authorship (§ 103(b))
· Fact expression dichotomy-is applied to all works of authorship
o Roth Greeting Cards v. United Card Co.
§ “Total Concept and Feel”
· Greeting cards were copyrightable. Based upon the courts total concept and feel of the cards, they were the same as the defendants and thus infringement occurred. All elements of each card, including text, arrangement of the text, art work, and association between the art work and test should be considered as a whole. Court ruled it as a compilation
§ Dissent: Does not understand how the court can say the words and pictures taken independently are not copyrightable and then say the composition/compilation is copyrightable.
The Idea/ Expression Distinction
Ø No copyright protection for a work’s ideas
o Unprotected ideas are systems, methods, process, concepts building block
o This is particularly relevant in area of functional works
§ Functional= main purpose of work is accomplishing a task
Derivative Works
Ø Helpful Notes
o § 103 – derivative works are clearly within the subject matter of copyright
o § 101 “derivative work” – a work that is based upon one or more preexisting works, such as (sequels,)…or any other form in which a work may be recast, transformed, or adapted. Examples can include translations, dramatizations, fictionalization, motions picture version, sound recording etc.
§ Requirements of Derivative Works
· Work must be based on prior work of authorship
· Must be substantially different improvements
o Merely copying isn’t enough- must be minimally creative. Meaning the Derivative wo

n the scope of his employment. Court looks at several factors
§ (1) the hiring party’s right to control the manner and means by which the product is accomplished
§ (2) the skill required
§ (3) the source of instrumentalities and tools
§ (4) the location of the work
§ (5) the duration of the relationship between the parties
§ (6)whether the hiring party has the right to assign additional projects to the hired party
§ (7)hiring party’s discretion over when and how long work
§ (8) the method of payment
§ (9) hired parties role in hiring and paying assistants
§ (2) If the work is specially ordered or commissioned
· Strongly suggested there be a written agreement
· Applies if creator is independent contractor
· Independent contractors work must fall within specifically enumerated categories
o Contribution to a collective work, part of a motion picture/ audiovisual work, compilation, instructional text, test, answer material for test, or atlas
§ Exceptions to the general rule
· In trade secrecy cases , the test does not ask whether the employee was motivated in part by a desire to serve the employer, but other whether the invention relates to the type of work the employee was hired to perform, and in particular whether the employee’s duties are “inventive” or “noninventive”
o Thus if an employee is employed to do experimental work for inventivie purposes, it is inferred ordinarily..that patentable ides arrived at through the experimentation are to be owned by the employer
· Traditionally, college and university teachers have been considered the owners of copyright in their scholarly writing and course materials, notwithstanding their status as full time employees.