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University of Illinois School of Law
Heald, Paul



Spring 2016

Theories to Justify Copyright

Utilitarian Theory

Protect the works for the authors because if there are no protections then there may be no incentive to create the works in the future

Considerations: Some things are not made for financial benefit; some things are expensive to reproduce and therefore protected; can use contract law by collecting unprotected material into one place for ease of access
Most Protection Required: Things that take a lot of time, but are easy to copy (Books, Films, Movies)

Cost/Benefit Analysis

Benefit: Some incentives for people to create new works; incentive to commercialize and distribute
Costs: Marginally higher prices for goods; increases costs of follow-on innovation; possibility of monopoly markets; diminished availability

Note: Everything prior to 1923 is in the public domain; copyright is currently the life of the author plus 70 years
Constitution: “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”

The use of the term “authors” indicates the framers only meant to reward original works

Natural Rights Theory (Locke)

Reward Theory: Those that have worked to produce a work that is enjoyed should always benefit from the creation of that work

French give painters an inalienable right to receive 5% royalties on all subsequent sales of their art

Labor Theory: If you add your labor to something then it is yours, but the materials must be left for others to do the same

Hegelian/Personhood Theory

Stronger property rights for objects that more closely bound up with one’s sense of personhood
Defends the legacy of the creator by keeping the works from becoming distorted and therefore distorting the legacy of the creator

Public Domain Related to Theories to Justify Copyright

Utilitarian: The raw materials must exist out there to work with and create new things; draw from the public domain
Natural Rights: Have to have a healthy commons to apply labor to new things in new ways to create
Personhood: Raw materials have to be available for new authors to create defining pieces

Effect of Technology

Changes in technology change the needs of copyright and how it is understood. In the 1800s it would not have made sense to print things in the public domain because other could print too and the costs were too high. Today, it’s relatively cheap to print and publishers do not lose money

Berne Convention

Established in 1886 and most countries joined. Automatic protection in all members from the moment of creation or fixation
U.S. did not join until 1988 because does away all formalities and US wanted to keep our formalities to copyright (especially registration), Berne has a moral rights section and provides for authors to be protected from the distortion of works that harms their reputation (we made one change with visual arts and didn’t change anything else. We just assume we comply with the Berne Convention), very narrow notion of fair use (U.S. is probably out of compliance with fair use here than what Berne allows)

TRIPS Agreement

Drafted by US after frustration with WIPO over fighting piracy. Incorporated all of Berne except the moral rights provisions
No private cause of action against non-complying states, victims must complain to their governments
Policy Note: We have been called imperialistic forcing copyright laws on developing countries (Brazil and India where there were no patents on pharmaceuticals and drugs were much cheaper). This can hurt developing countries because translating textbooks is guarded by copyright and it makes it very hard to get one in the language of the country. Software as well to start banks and school and paying for software is a huge barrier

Subject Matter Eligible for Copyright Protection

§ 102 of Copyright Act: (1) literary works [maps and charts] (1790) [etchings and carvings]; (2) musical works, including the accompanying words; (3) dramatic works, including the accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audio visual works; (7) sound recordings; (8) architectural works

(a) Copyright protection 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.
(b) In no case does copyright protection for an original work of authorship extend to any idea [or fact], procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Summary: (1) Work of authorship [8 categories stated above]; (2) Originality; (3) Fixation

Definition: “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.”

For infringement of the reproduction right to occur, there must be two fixations: (1) one copy fixed by the author of the work; (2) a copy of the work fixed by the infringer

Ballet: Scripted, therefore fixed
Baseball Game: Not scripted or written down in terms of what will happen therefore not fixed
Professional Wrestling: Scripted, so could be protected by copyright
Recording a Scripted Ballet: Recording is fixed and tangible, but doesn’t count as legal fixation because it wasn’t made under the author’s authority
Recording Cubs from Balcony: Not infringing as long as not copying the protected broadcast
Recording the Performance of U of I Orchestra: Can record as long as present in the audience (could violate bootlegging)

17 U.S.C. § 1101 (a) Unauthorized Acts. – Anyone who, without the consent of the performer or performers involved — (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation . . . shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

Performing Jazz Riffs You Heard: No problem, just performing and not fixing in any way
Recording an Improve Dance Group With 2 People Recording: Each person has a copyright in their recording and can stop others from copying their recordings.Neither has a copyright in the dance itself, so either student can play their own recording without the other’s interference, and anyone else could repeat the dance.

Williams Electric v. Arctic International (1982)

Facts: π made Defender and copyrighted program and audio/visuals for play mode and attract mode. ∆ argued that play mode made the player a co-author.
Rule: There are enough repetitions of visuals to satisfy being fixed despite the input of the player. The same hero, trees, and background are present.

Warner Brothers v. CSC Holdings (Cablevision) (2009)

Facts: Cablevision (∆) provides DVR service to custome

ion v. Coors (2006)

Facts: Manion took a picture of Kevin Garnett in all white with a bunch of jewelry from a unique angle. Shortly after, a very similar angle appears of a black man, dressed in all white, with a bunch of jewelry, but not including the face on a Coors billboard.
Rule I: Court has expressed the protectable elements of a photograph to be: (1) selection of film and camera; (2) lens and filter selection; (3) Rendition (angle, lighting, exposure, filters, development technique); (4) Timing (very weak protection that doesn’t seem to protect anything, e.g. a picture of a salmon jumping is timed and protected, but other people are not precluded from taking a picture of a salmon jumping); (5) Creation of the Subject (choice of subject, posing, wardrobe). None of these are protectable on their own, but when taken together create a protectable work.
Rule II: Court must look at the creative choices made by the photographer and determine if too many have been copied in the allegedly infringing work. Rendition and Timing protect against the actual copying of the photographer original picture.

Meshworks v. Toyota (2008)

Facts: Toyota made a car that was used as a model for computer graphics. Meshworks made a computer model of the car and then must hand create all the lights and finer details (90% is manual creation). G&W, who subcontracted Meshworks, then adds backgrounds and lighting to make it look like a car. Meshwork argues that its model qualifies as an independent creation.
Rule: Regardless of the manual choices Meshworks had to make in generating the car, they are not protected because they made an exact copy as close as possible to the real car without adding anything of artistic value. The intent was indicative that they wanted to make a true rendering of the car as unoriginal as possible.

Merger Doctrine

Definition: There are a limited number of ways available to express the idea therefore the idea and the expression merge together and neither are protected. Example: Things like a diagram of a floor joist only have so many ways of representing, but things like a map can show a lot of different information in many different ways.
Material NOT Subject to Copyright § 202.1

Words and short phrases such as names, titles and slogans; familiar symbols or designs; mere variation of typographic fonts; lettering or coloring; mere listing of ingredients or contents
Ideas, plans, method systems, or devices, as distinguished from the particular manner in which they are expressed or described in writing
Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms, which are designed for recording information and do not themselves convey information
Works consisting entirely of information that is common property containing no original authorship, such as calendars, height and weight charts, tape measures and rulers, schedules for sporting events, lists or tables taken from public documents
Typeface and Fonts