Copyright Spring 2008 Jeffrey Harrison Outlines
I. Boundaries of Copyright
Policy of Copyright (Positive internalities: an artificial means to an ends: to promote maximum creativity w/ minimum cost)
Ends: promote the progress of science and useful arts
Promote broad availability of art
Moral rts: grant creators ownership of their work
Means: secure for limited times to authors and inventors the exclusive rt to their respective writings and discoveries
Limited times: no monopoly
An inducement to artist’s labor
Legal System of Copyright Protection
Federal level
1909 Copyright Act
Publication w/ notice of copyright
w/ notice: a fussy line to draw
publication
1978 Copyright Act – fixation – easier to detect
Estate of Hemingway v. Random House (1968, NY)
Facts:
Hemingway discussed works w/ a young author, a young author recorded and later published some of the talks – not the statement of ideas but expression of ideas – state copyrt protected when created
Conversation – w/o intent to publish – reserved copyrt
Explicit no consent to publish the conversation “nobody can hear except the two of us”
State level
St 301 Preemption w/ respect to other laws
Pre-1978: published
State copyright protection at the time of the creation of the work until general publication w/ author’s notice occurs
Publication – fed protection
General publication: divested state copyrt protection to fed
General publication: if no restrictions on copying and no guards preventing copying to the general public – every citizen / any interested individual
If complied w/ statuary requirement – fed protection,
If not complied w/ statuary requirement – forfeited copyrt – allow public to exercise dominion & control
Limited publication: no divest of state copyrt protection – communicate to a select group for a limited purpose
To the news media –
Estate of Martin Luther King, Jr, Inc v. CBS, Inc (11cir 1999)
King’s broadcasted speech “I have a dream” – whether general v. limited publication
Limited publication: only through specific channel, not addressed to any interested individual
Post 1978 – unfixed
State law: publicity rts – rt of first publication
Subject Matter of Copyright
Concept: expression of ideas, not ideas, concepts – the work of authorship, not physical manifestation
Post- 1978:
Original works of authorship,
Fixed,
Not known or later developed
Can be perceived, reproduced, or otherwise communicated in any tangible manners
Ownership of Copyright St 201, St 204
St 201 Ownership of Copyright
Initial ownership: author / works made for hire / collective works
Transfer of ownership
Transferred in whole or in part by any means of conveyance or by operation of law,
Or bequeathed by will or passed as personal property by the intestate succession laws
Transfer of copyright
Federal
1978 [FIXED]- St 202 Ownership of Copyright as Distinct from Ownership of Material Object
Transfer of the material object DOES NOT IN ITSELF transfer copyright, NOR
Transfer of copyright convey property rts in material object ABSENT OF AN AGREEMENT
State level [unfixed / unpublished – rarely exist the problem of property rt in object v. copyright]
Intent prevails – whether intent to transfer copyright when material object is transferred
Pushman v. New York Graphic Society, inc (1942, NY)
Facts: painter sold the painting to University – Gallery, Gallery wanted to publish the painting , painter objects
Law: rt to reproduce does not pass w/ the manuscript unless expressed by evident intent of the parties
An unconditional sale include implicit permission to publish the work & painter took no step to withhold / control the copyright
Chamberlain v. Feldman (NY, 1949) – Mark Twin (Samuel Clemens)
Facts
Feldman bought an original manuscript of Mark Twin’s unpublished work at an auction sale
The copyrts of all unpublished work was transferred to Chamberlain
Feldman published the work
Ruling: no intent to transfer copyrts – unpublished during life (so when the manuscript is transferred, Mark Twin has no intent to transfer copyrt)
Level of Protection
St 106 What kind of protection
St 107 -120 limitations
St 107 fair use – like an easement
Duration of Copyright St 302
Pre-1978
Two terms – renewal terms
Post-1978
70 yrs after life (pre-1998: 50 yrs) by Supreme Ct’s retroactive extension of copyright
Infringement – (like SL)
Access, and
Substantial similarity (what to listen for) – jury question
Can infringe w/o conscious knowledge
Substantial similarity –
Only expressi
substantial deviation
inconsistent among case law
no originality
simply change the medium or make it cheaper
originality
smaller version of a master piece
d. Compilations
compilation is a work performed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship
phonebook
Feist Publication, Inc. v. Rural Telephone Service, Co. (Supreme Ct, 1991)
Telephone company Rural telephone compiled phone book based on client’s subscription data – copyrightable?
Original works of authorship
Phone book – copyrightable if possess originality
Originality – selection, coordination, arrangement:
Need more that facts – names, phone numbers are facts
Not original: if selection only by names & arrangement alphabetically – no thought, only method – what is other form of arrangement
Independently created by the author, and
Possess at least some level of originality
Novelty not required
e. Maps
U.S. v. Hamilton (Supreme Ct, 1978)
Map: compilation & pictorial work
Pictorial, graphic, and sculpture works include 2-D and 3-D works of fine, graphic, and applied art, photographs . . . such works shall include works of artistic craftsmanship insofar as their form BUT NOT THEIR MECHANICAL OR UTILITARIAN ASPECTS.
Maps are protected as its expression – but not the facts – very thin protection
Only signs, colors, choice of cities
Facts – such as elevations, presentations – not protected
f. Architecture
Robert Jones Associates, Inc. v. Nino homes
– pre-1990: plans are copyrightable, actual constructed building not copyritable
o award: copyrt holders’ damages + infringer’s profits
o actual building, works as useful art – utilitarian structure not protected, but decrative part yes
