Copyright Outline

Copyright Shipley Fall 2014

I. Theory and Copyrightable Subject Matter

A. Copyrightable Subject Matter- “Copyright protections subsists in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 USC §102(a)

1. Fixation

i. 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. 17 USC §101

ii. Fixation can be in “any tangible medium of expression” and expresses a technologically forward-looking view, encompassing future mediums of expression without need for statutory revision.”

iii. In White-Smith Music Publishing Co. v. Apollo Co. p. 68 (case from 1908, prior to the 1976 Act) the court held that the piano machine that played a copyrighted song wasn’t infringing because the court says that the sheet music was protected, not the song, and the machine doesn’t copy the sheet music because it’s never fixed

a. Court seemed to put the onus on Senate to change the law, but Shipley thinks that they still could’ve/should’ve ruled for infringement even with the law in place

iv. Difference between infringement analysis and copyrightability analysis

a. Copyrightability analysis– focuses on whether a work or an aspect of a work is protected

b. Infrinement analysis – it’s predicated on proof by the clamant of ownership of a valid copyright in the work and focuses on whether a copyright owner ‘s exclusive rights have been violated by a particular act alleged to be an unauthorized use of a protected work

v. In Midway Manufacturing Co. v. Artic International, Inc., p. 75 the court held that taking infringement because the court interpreted the fixation broadly believing that the statute was intended to cover things like this

vi. Examples of unfixed works: pop-up ads, low tide making something in the sand, sidewalk chalk

vii. § 101 Copies (modern definition) – material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device

viii. Phonorecords – material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now or known or later developed, and from which sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (Includes the material object in which the sounds are first fixed)

2. Originality

i. Two factors speak whether a work is original:

· Created by an author (but not necessarily novel)

· Possesses at least some minimal creativity

ii. Commercial value doesn’t matter

iii. Threshold for originality set very low (Holmes in Bleinstein)

iv. Judges shouldn’t be deciding whether the art is high quality enough

v. Precedents guide originality. Works protected by copyright ON PAGE p.349.

vi. For example in Feist Publications, Inc. v. Rural Telephone Service Co. the court held that you cannot copyright facts, but the way the facts are compiled can be copyrighted.

· This case created the originality requirement

· This notion went against the “sweat of the brow” approach, which says if you took the time to make the facts then you should own the rights to them.

· Copyright in compilation is thin, as only near identical copies will be protected.

· The reason for this is because facts are not original.

vii. Jurisdictions are split on whether to treat this as an issue of law or fact

viii. Catchphrases (“Where’s the beef?”) are not copyrightable because they lack originality

ix. In Burrow-Giles v. Sarony, p. 91 the court defines authorship as the originator (“to whom anything owes its origin”).

a. Includes photography as copyrightable because it’s in which all forms of expression are given visual representation

b. Court doesn’t completely ignore the fact that a machine (camera) made the image, but things like the setting, lighting, wardrobe, pose, etc. give the photo enough originality and the photographer enough authorship

x. In Mannion v. Coors Brewing Co. p. 97 (KG ice pic case) court rules that the magazine photo is copyrightable and gives 3 elements of originality.

a. Three elements of originality:

i. Rendition

ii. Timing

iii. Creation of the subject

xi. In Bleinstein v. Donaldson, p 99 court ruled that the carnival ad poster was copyrightable. I