Shipley/Copyright/Spring2013
INTRODUCTION
constitution: art I sec 8 clause 8 (copyright clause): congress has the power 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
1976 copyright act: 17 USC 101 et seq: governs copyright law
US copyright office: handles registration, transfers, administration of copyright law
purpose of copyright law: protect users; authors secondary (in contrast to europe, which is more of an “author’s rights” regime)
2 types of copyright analysis:
protectability: can work be protected under copyright act?
Infringement: have existing rights been violated?
a “copy” need not be the same for protectability and infringement analysis; e.g. writing a sequel to a copyrighted work may be “original” enough to be protected, but may violate existing copyright and thus infringe
divisibility of copyright: rights can be broken up (e.g. distribution, display, reproduction)
split authorship for recordings: can have different authorship claims for underlying work and means by which it is fixed (e.g. publisher, author)
PREREQUISITES FOR COPYRIGHT PROTECTION
17 usc 102a: copyright protection subsists in original works of authorship fixed in any tangible medium of expression from which it can be perceived/reproduced/communicated, either directly or with the aid of a machine or device
2 fundamental requirements: originality, fixation
limits on copyright protection: can’t copyright idea, procedure, process, system, method of operation, concept, principle, discovery that otherwise satisfies originality and fixation requirements
fixation: physical rendering of fruits of author’s creativity
constitutional justification: constitutional language protecting “writings”
tangible medium of expression: can be known or later developed; sufficient if work can be perceived, reproduced, communicated either directly or w/ aid of machine or device
pre-1909 act: (white-smith music publishing co. v. apollo co.)
fixation requires fixing in a medium from which it can be read w/o great difficulty
protection only extends to tangible notation (e.g. written/printed record), not intangible (e.g. sounds) that come from notation
e.g. player piano rolls cannot be read w/o great difficulty, therefore they are not “copies” under copyright act
1909 act: white-smith not overruled, but copyright protection extends to mechanical reproductions of musical compositions; compulsory license for mechanical reproduction
1976 act: expanded to include that which can be read either directly or w/ aid of machine/device
anything published since 1923 can be protected b/c sonny bono act extends to 95 yrs after publication; anything before 1923 is public domain
distinguishes b/w copies and phonorecords b/c concerns about how to treat device that human can’t read (e.g. in white-smith)
computer software: work need not be recorded exactly as perceived by human eye; only must be capable of reproduction by machine/device
17 usc 101: amended in 1980 to include software
program = set of instructions to tell computer what to do
literary work = non-audiovisual works expressed however, regardless of nature of objects on which they are embodied
software loaded into RAM can be fixation for infringement analysis; but specific facts may dictate otherwise
can no longer file separate copyrights for audiovisual display and underlying computer program; must file single registration for either program or audiovisual display
e.g. temporary program used to load, e.g. buffer, may not be fixation
e.g. video game characters stored as symbols that are combined by computer subject to user input are still “fixed” in ROM (midway manufacturing co. v. artic international inc.)
simultaneous fixation: 17 usc 101: work consisting of sounds/images that are being transmitted is fixed if fixation is made simultaneously w/ transmission
oral expression: only copyrightable in narrow circumstances; must be defined segregation b/w thoughts and expression to be copyrightable
berne convention, universal copyright convention do not require fixation
live musical performances: not protected under copyright act, but protected from unauthorized fixation outside copyright act
18 usc 2319A provides for criminal penalties that supplement civil cause of action for unauthorized fixation of live musical performances; but this does not confer exclusive rights (us v. martignon)
unfixed works under 1976 act: comedian at comedy club (unless it is recorded), jam band, sand castle at the beach, possibly ice sculpture, garden
copyright protection outside copyright clause: other clauses of constitution can be used to extend similar protection (e.g. commerce clause) (us v. moghadam)
originality: 17 usc 102a: requires independent creation by author, modest quantum of creativity; protects expression but not idea
2 considerations: (meshwerks inc. v. toyota motor sales usa inc.)
objective assessment of creations; i.e. if you can filter out what is copied and you’re left with nothing, it is not original
intent/purpose in creating them
intent is relevant but not dispositive; if intent is to make exact copy, more likely that it is in fact unoriginal, but if copier actually made it different by accident, that is enough to make it original
“sweat of the brow” doctrine: amount of work involved in making a copy is irrelevant
constitutional justification: “to authors the exclusive right to their respective writings” presupposes originality, since “authors” = he to whom anything owes its origin
very lenient standard for originality; slight originality is enough; does not include novelty, ingenuity, aesthetic merit requirements
act intentionally does not include the word “creativity”; originality doesn’t include artistic merit, extends to works that don’t have much artistic value e.g. advertisements
originality is a court-defined standard; intentionally not defined in 1976 act to let courts use already developed standard
why? judges shouldn’t be put in position to judge the worth of works outside narrowest and most obvious limits (bleistein v. donaldson lithographic co.)
ideas and information are not copyrightable; originality only refers to form in which intellectual concepts are expressed
question of fact vs. law depends on jurisdiction; some treat originality as fact, some as law; but idea/expression dichotomy usually treated as question of law
comparison w/ novelty in patent law: unlike novelty, originality doesn’t require uniqueness, only requires that work owe its origin to author
e.g. if author creates a work that is identical to previous work, but doesn’t know of previous work, it is copyrightable (traces origin to 2nd author) but not patentable (not new)
computer-generated works: 1979 congressional commission says author employs computer, so user of computer holds authorship
photographs: original intellectual conceptions of photographer are copyrightable (burrow-giles lithographic co. v. sarony)
3 ways a photo can be original:
rendition: aspects of subject’s depiction (e.g. angle, light, exposure, effects)
timing: seize particular moment in time (right place at the right time)
creation of subject: e.g. posing subject in a certain way
subject of a photograph is not copyrightable; i.e. someone else can take a photo of a subject that has been photographed in a copyrighted work
merger doctrine may apply if the original photo violates idea/expression dichotomy
copyright extends to unspectacular photographs of notable events (e.g. zapruder film)
obscenity: courts split as to whether it is protectible; 2 appeals courts say it is not defense to copyright infringement but others don’t go that far
why not allow obscenity defense? b/c obscenity judged by local community standards; would create fragmented copyright regime
randomly generated work for the most part is probably not copyrightable; e.g. throwing banana peel in trash probably can’t be copyrighted, but readymade art featuring banana peel in trash may be
copying across mediums can still violate originality; just b/c work in one medium is copied to another doesn’t make it any less of a copy if nothing new is added
idea/expression dichotomy and merger doctrine
idea/expression dichotomy: copyright includes only the expression, not the underlying idea (baker v. selden)
17 usc 102b: no copyright protection to procedure, process, system, method of operation, concept, principle, discovery
right to use a method does not confer with copyright law; that is patent law’s domain
e.g. even if selden’s forms were copyrightable, information therein can’t be used w/o employing expressive work; so the forms are free to use for their purpose, but not free to use in other expressive works explanatory of the art
justification? point of a work is to communicate the idea to the world; would defeat the purpose if employing that idea then results in infringement liability
merger doctrine: when there are limited number of ways to express idea (b/c subject matter is so narrow), shouldn’t confer copyright protection to expression of the idea (or should have limited copyright at best)
justification? otherwise copyright holder could exhaust all possibilities of future use, effectively giving himself a right to use
e.g. plain photo of vodka bottle might run afoul of merger doctrine; selden’s forms; contest rule (morrissey v. procter & gamble co.)
maps: merely indicating a location doesn’t make it copyrightable; bringing together diffuse information on a map may make it copyrightable
recipes may or may not be copyrightable (7th circuit says no, s.d.TX says maybe)
identical copying of merged expression: when expression is non-copyrightable, identical copy of expression may still not be allowed (9th circuit says yes, 4th circuit says no)
timing of merger inquiry: circuits split as to when to consider merger (5th circuit says when determining validity of copyright, 2nd circuit says when looking at potential infringement)
other considerations
national origin: TRIPS (1994) obligates US to recognize copyright to other WTO members same as it would to US citizens
gov’t works: 17 usc 105: barred from copyright protection
definition: work prepared by officer/employee of us gov’t as part of official duties (determined by agency law)
federal statutes/regulations/judicial opinions not subject to gov’t copyright ownership
105 theoretically only applies to federal gov’t, so lower levels could hold copyrights (but public domain statutes and ordinances cannot be copyrighted by anyone)
exceptions:
copyrights can be assigned or bequeathed to us gov’t
secretary of commerce can get copyright for USA in standard reference data compiled and evaluated by national institute of technology and standards in areas of science and engineering
independent contractors can get copyright protection for works created for gov’t
formalities: no longer required (e.g. notice, registration, deposit)
WORKS OF AUTHORSHIP
copyright protects only intangible expression of work, not tangible medium (material object) in which it is fixed
not everything in a copyrighted work is copyrightable
8 enumerated (non-exhaustive) categories of works of authorship (* – defined in 17 usc 101; ** – undefined but have settled meanings):
literary works*
research is not copyrightable; researchers can rely on previously published and copyrighted material to conduct research for their own material w/o infringing (miller v. universal city studios)
justifications:
copyright doesn’t award labor involved in aggregating facts, but rather originality involved in presenting them; copyrighting research is equivalent to copyrighting facts
encourage people to draw on the past’s discoveries and insights
counterargument: each historian may have different explanations of the same occurrence, and these unique perspectives should be copyrightable
words and short phrases (e.g. names, titles, slogans) not copyrightable; but trademark or unfair competition law may apply
fictional characters: circuit split
2nd circuit: can’t imitate details of characters featured in previous works to the extent that those details are original to those works (silverman v. cbs)
9th circuit: copyright in literary work only covers fictional character that constitutes the story being told; most story cha
can include performer’s rendition, producer’s selection/mixing of sounds
ownership: not decided by congress; employment relationship and bargaining among interests involved determines
17 usc 114: duplication of sound recording infringes not only songwriter’s right but also all other copyright holders’ rights
but imitation of recording by rerecording is not infringement; therefore performers have contract provision agreeing not to rerecord song for set number of years
digital transmissions: only limited performance rights; e.g. when radio station plays a song, songwriter gets royalty but sound recording’s copyright owner doesn’t get royalty
doesn’t apply to recordings before 2.15.1972; these only get state law protection until 2067
architectural works: protects design of building as well as material objects in which architectural works may be embodied (e.g. building, architectural plans, drawings)
design = overall form as well as arrangement/composition of spaces/elements in design
standard features (e.g. common windows, doors, etc.) are probably not copyrightable (unless there is significant variation compared to stock features)
arrangements of entirely unprotectible standard features can result in a protectible whole (overall form)
3 step functionality analysis:
see whether there are original design elements incl. overall shape and interior architecture
if so, see whether these elements are functionally required
if not, then work is protected w/o regard to physical or conceptual separability
building is not defined; definitely includes habitable structures and structures that are used but not inhabited (e.g. gazebos, churches); questionable whether it includes other structures like dams and bridges
free standing structures are protected (e.g. mall), but individual units comprising structures may not be (e.g. store within a mall)
timing: protects works after 12.1.1990 or works that were unconstructed but embodied as of that date; all architecture in existing or substantially constructed buildings before that date not copyrightable
feasibility of construction not relevant; doesn’t matter whether plans can realistically be translated into actual structure (shine v. childs)
idea/expression dichotomy: although ideas alone are not copyrightable, once design includes specific expression and realization of ideas, it is protectible
120a: can’t prevent distribution/public display of depictions (e.g. pictures, paintings, photos, representations) of architecural work if it is visible from public place
e.g. non-slavish painting based on movie scene could be copyrightable to the extent it has original features
120b: building owner can alter/destroy copyrighted building (includes right to make plans that copy original’s design)
derivative works and compilations: 17 usc 103: “second generation” works based on preexisting material
derivative works: recasting/transforming/adaptation of preexisting, individually copyrightable works is protectible (but preexisting works need not have actually been copyrighted)
originality: criteria of copyrightable subject matter from 102 applies w/ full force to works containing preexisting material
must have sufficient nontrivial expressive variation to make it meaningfully distinguishable from underlying work (schrock v. learning curve international inc.)
rejects prior test that required “substantial difference” from original
change in medium may or may not be sufficient originality; batlin says no, but transforming 2D work into 3D may be sufficient (doran v. sunset house distributing corp)
public domain works incorporated in derivative work: varying standards
derivative work only requires sufficiently distinguishable variation (alfred bell v. catalda fine arts)
derivative work needs some substantial originality (i.e. not enough if your pen just slips) (batlin v. snyder); this standard has considerable weight in the court system
copyrighted works incorporated in derivative work: tougher standard than for public domain
derivative work’s original aspects may have to be more than trivial (a la batlin standard), or might be sufficient to just not be a “slavish copy” (schrock)
may also require that original aspect of derivative work doesn’t affect scope of copyright protection in preexisting material
why tougher standard here? b/c if granted too readily, original copyright holder would have harder time permitting others to copy, since derivative copyright holder would have de facto monopoly due to considerable power to interfere w/ creation of subsequent derivative works
if derivative work creator has permission to create work, he can get copyright w/o separate permission
noncopyrightable objects cannot be incorporated in derivative work (although original work can be created based on noncopyrightable object, e.g. photo of vodka bottle)
not to be confused w/ usage of “derivative work” under 106(2), referring to conduct that may be infringement if undertaken w/o copyright owner’s authorization
