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Intellectual Property
University of Dayton School of Law
Reilly, Tracy

Intellectual Property
Legal Test for © – § 102
Independently Created – not copied
Low Modicum of Creativity – easy threshold to meet,courts will not judge the artistic merits of a work
Originality is also a Constitutional requirement – as defined in Burrow-Giles and The Trademark Cases. Defining “authors” and “writings” from Art. I, § 8, cl. 8:
1.The Trademark Cases – “under the head of writings of authors…originality is required.”
2.Burrow-Giles – “author…he to whom anything owes its origin; originator; maker
Bleistein (p. 309):
1.Expansion of subject matter – originality consists of anything that is not copied
2.“nondiscrimination principle” – do not want to have judges deciding what is creative or not
Feist (p. 315):
1.Facts are not copyrightable since no one can claim originality as to facts
2.Compilations of facts can be copyrightable if the selection, coordination, or arrangement meets the originality test (§ 102)
3.“Sweat of the brow” no longer protectable
Work of Authorship –
Enumerated categories in § 102 (list NOT exhaustive):
1.Literary works*;
2.Musical works, including any accompanying words;
3.Dramatic works, including any accompanying music;
Pantomimes and choreographic works;
4.Pictorial, graphic, and sculptural works*;
5.Motion pictures and other audiovisual works*;
6.Sound recordings*; and
7.Architectural works*
* = defined in § 101
Fixed in Tangible Medium Expression – 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 (§ 101)
2 senses of fixation:
1.Physical Stability – attached to an unchanging physical thing
2.Temporal Stability – static over time (i.e. every time we hear a song it is the same)
Definition of “Fixed” in § 101 + definition of “copies” in § 101 àa work of authorship is “fixed” even if it is only perceptible via some mechanical process, and even if it exists for only a “transitory” period of time
The original of a copyrighted work is referred to as a “copy”
Williams Electronics –
Limitations on Copyrightability
I.                    Merger Doctrine
A.      Legal acknowledgement that an idea can be expressed in 1 or a limited number of ways
B.      CCC (p. 355)- distinguished from Feist in that the values of used cars are editors’ opinions, not fact like phone numbers and addresses
1. “These are ideas of the weaker category, infused with opinion; the valuations explain nothing, and describe no method, process, or procedure.”
2.Merger doctrine not applied where “ideas contained in the Red Book are of the weaker, suggestion-opinion category”
3.Reilly – “state a fact à1 way, state an opinion à many ways”
C.      Scenes a Faire – incidents, characters, or settings which are as a practical matter indispensable, or at least standard in the treatment of a given topic are not protectable
1.i.e. conventions of a genre – certain plot devices, stock or standard characters, images, sounds, or expressive techniques
II.                  Method of Operation
A.      Methods of operation are not copyrightable (§ 102(b) of copyright act)
B.      Lotus v. Borland (p. 364)– court analogized the menu command hierarchy to VCR buttons
1.“just as one could not operate a buttonless VCR, it would be impossible to operate Lotus 1-2-3 without employing its menu command hierarchy…the lotus command terms are not equivalent to the labels on the VCR buttons, but are instead equivalent to the buttons themselves.”
CR does not Protect
Bare Facts (Feist)
Bare Ideas (Selden)
Expression that Merges with Idea (CCC)
Useful Articles
Mazer – 3D Mass produced articles are subj. to ©
Useful Article Test from § 101
Is the work a PGS work? (look to § 101)
Physical Separability b/t PGS attributes and utilitarian aspects?
Not Copyrightable
Conceptual Separability?
Can the aesthetic features be
1. Identified separately from
2. Exist independent of
the utilitarian aspects?
Aesthetic attributes are copyrightable
Not Copyrightable
Aesthetic Aspects are Copyrightable
A.                  Brandir (p. 373) Majority Test– did the designer adapt the original aesthetic elements to accommodate and further a utilitarian purpose?
If so, then design is not copyrightable (Brandir p. 373-79)
If form is not independent of function, then not CR’able
B.                  Dissent in Brandir  test– should be judged on whether it “causes an ordinary reasonable observer to perceive an aesthetic concept not related to the article’s use”… “my colleagues also allow too much to turn upon the process or sequence of design followed by the designer.”
C.                  Statutory test is above in flowchart – apply all
D.                  Small note from Brandir – mass production does not bar copyrightability
III.                Classifying Copyrightable Works
A.      Pictorial, Graphical, and Sculptural Works – (PGS) – include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, and art reproductions, maps, globes, charts, di

opyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
(b)   Works made for hire – In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright
Joint Ownership – Aalmuhammed v. Lee (p. 400)
To be a joint work:
1. There must be a copyrightable work
2. Two or more “authors”
3. The authors must intend their contributions to be merged into inseperable or interdependent parts of a unitary whole
4. In the 9th Circuit – joint work requires each author to make an independently copyrightable contribution
“a creative contribution does not suffice to establish authorship of the movie”
Three factors to determine if a co-author (in absence of a contract) (p. 404-05:
1. An author must superintend the work by exercising control
2. The coauthors must make objective manifestations of a shared intent to be coauthors
3. The audience appeal of the work turns on both contributions and “the share of each in its success cannot be appraised”
*control in many cases will be the most important factor
Works Made for Hire – CCNV (p. 408)
§ 101 Definition:
1. Prepared by an e’ee within the scope of employment
2. Specially commissioned for use as a part of [9 enumerated works] IF:
1.       Parties agree in writing that it is a WMFH
9 enumerated works under WMFH:
1. Contribution to a collective work
2. As a part of a motion picture or other audiovisual work
3. Translation
4. Supplementary work
5. Compilation
6. Instructional text
7. Test
8. Answer material for a test
9. Atlas
In CCNV, Since “sculpture” was not enumerated under “work made for hire,” courts look to whether creator of work was an employee or independent contractor
List of factors to determine whether the creator is an independent K’r or e’ee:
1. Independence of worker
2. Discretion of worker
3. High amount of skill required
4. Number of projects (Reid only had 1 in CCNV)
5. Length spent on project (Reid only spent