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University of Dayton School of Law
Reilly, Tracy

I.                    The PRIMARY GOAL of copyright law is to get more works out there!
II.                  Acquiring Copyrights
a.       Overview
                                                               i.      Copyright protection arises automatically so long as a given “work of authorship” meets three broad criteria:
1.       The work must be original (102-a),
2.       It must be fixed in some tangible form (102-a),
3.       And it must consist of “expression,” rather than “ideas” (102-b).
                                                             ii.      The copyright owner has exclusive rights to:
1.       Reproduce, distribute, and publicly perform or display copyrighted works (106).
2.       Those who exercise any of these rights without the copyright owner’s permission may be enjoined and/or liable for damages.
                                                            iii.      You do not need to register a copyright to have copyright protection, BUT you cannot bring a suit unless you have a certificate of copyright.
III.                Requirements for Copyright Protection
a.       Legal test
                                                               i.      Original
                                                             ii.      Work of Authorship
                                                            iii.      Fixed – memorialized in a physical form.
                                                           iv.      Expression rather than idea
b.      Originality and Authorship
                                                               i.      Only “original works of authorship” are eligible for copyright protection, according to 102(a) of the Copyright Act.
                                                             ii.      Works of authorship include, but are not limited to:
1.       Literary works,
2.       Musical works, including any accompanying words,
3.       Dramatic works, including any accompanying words,
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.
                                                            iii.      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 its form. (This is for patent law).
                                                           iv.      Burrow-Giles Lithographic Co. v. Sarony – photographs are copyrightable.
1.       Originality, in short, lies in formulating mental images of reality and transferring them to fixed form, and not in mere reproductions.
2.       This formulation focuses on the “creative” author.
                                                             v.      Mannion v. Coors Brewing Co.
1.       Almost any photograph “may claim the necessary originality to support a copyright.”
2.       A photograph may be original in three respects:
a.       Rendition
                                                                                                                                       i.      Specialties as angle of shot, light and shade, exposure, affects achieved by means of filters, developing techniques, etc.
                                                                                                                                     ii.      To the extent a photograph is original in this way, copyright protects not WHAT is depicted, but rather HOW it is depicted.
b.      Timing
                                                                                                                                       i.      A person may create a worthwhile photograph by being at the right place at the right time.
                                                                                                                                     ii.      Creation based on originality in timing is limited by the principle that copyright in a photograph ordinarily confers no rights over the subject matter.
                                                                                                                                    iii.      The image that exhibits the originality, but not the underlying subject, qualifies for copyright protection.
c.       Creation of the Subject
                                                                                                                                       i.      A photograph may be original to the extent that the photographer created “the scene or subject to be photographed.”
                                                           vi.      Meshwerks, Inc. v. Toyota Motor Sales U.S.A.
1.       If an artist affirmatively sets out to be unoriginal – to make a copy of someone else’s creation, rather than create an original work (such as creating an exact model of Toyota vehicles) – it is far more likely that the resultant product will, in fact, be unoriginal.
2.       The intent of the author sometimes can shed light on the question of whether a particular work qualifies as an independent creation or only a copy.
                                                          vii.      Bleistein v. Donaldson Lithographic Co. – lithographs are copyrightable.
1.       Others are free to copy the original. They are not free to copy the copy.
2.       The copy is the personal reaction of an individual upon nature. Personality always contains something unique, it expresses its singularity even in handwriting, and a very modest grade of art has in is something irreducible, which is one man’s alone.
3.       Originality appears to lie in the very act of producing the tangible work, rather than in the act of forming an intellectual creation in the mind, then transferring it to written form.
4.       The Nondiscrimination Principle
a.       It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of art.
b.      This prevents courts from concluding that works of art used in connection with advertising are less deserving of copyright.
5.       Works produced by a laborious process of tracing, engraving, and coloring exact reproductions of preexisting works of fine art are copyrightable.
                                                        viii.      Feist Publications v. Rural Telephone Service – compilations are copyrightable.
1.       The Court defined author to mean he to whom anything owes its origin.
2.       Originality means only that the work was independently created by the author (as opposed to copied from other works), and that is possesses at least some minimal degree of creativity.
a.       Originality requires independent creation plus a modicum of creativity.
3.       Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not th

am” or if the new copy is “for archival purposes only.”
                                                           iv.      Live Broadcasts are covered by Section 101
1.       “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.”
2.       However, then a live performance of a work is given to an audience present at the location of the performance, a contemporaneous recording technically does not qualify as “fixed” under the second sentence of the statutory definition, which covers only works “that are being transmitted.”
a.       Only if that live performance is also simultaneously transmitted, for example by either radio or television, will the contemporaneous recording satisfy the definition.
3.       Protection for Live Music Performances
a.       Section 1101(a) – prohibits the fixation or transmission of a live musical performance without the consent of the performers, and also prohibits the reproduction or distribution of copies or phonorecords of an unauthorized fixation of a live performance.
                                                             v.      The authority of the author
1.       Works of authorship consisting wholly or partly of improvisation, such as extemporaneous speaking, dance, or jazz are typically “unfixed.”
2.       They are not eligible for protection unless they are video- or audio-taped under the authority of the author.
                                                           vi.      The definition of “fixed” in the Copyright Act, coupled with the definition of “copies,” makes it clear that a work of authorship may be fixed even if it is only perceptible via some mechanical process, and even if it exists only for a “transitory” period of time.
d.      Expression
                                                               i.      Defined in 102(b):
1.       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 its form. (This is for patent law).
2.       Section 101 of the PATENT ACT defines patentable subject matter: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent…”
                                                             ii.      Baker v. Selden – process for bookkeeping is not copyrightable.
1.       The copyright of a book on perspective gives no exclusive right to the modes of drawing described, though they may never have been known or used before.
By publishing the book, without getting a patent for the process, it is given to the public – ideas, separable from