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University of Kansas School of Law
DeLaTorre, Phillip E.

Copyright – Outline

Writing an exam: 1) examine what exclusive rights are implicated, 2) consider whether there is a license or exemptions provided for in the copyright act, 3) examine infringements, 4) defenses, 5) remedies.

I. Justifications – (1) moral (works are an extension of the creator) and (2) incentive theories.

II. Copyright Clause of the Constitution – “The Congress shall have the power to … 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”

III. Copyright Act of 1976 – effective January 1, 1978 (but any works created b/f 1978 will be governed by Copyright Act of 1909)

IV. Subject Matter (§102(a)) – copyright will subsist in an original work of authorship fixed in a tangible medium of expression.

a. Fixation – constitutionally required b/c of protection only for “writings” – means memorialized or made permanent – can take place by any means of technology now known or later developed – statute creates two type of objects in which works can be fixed:

i. Phonorecords – physical objects in which sound recordings can be fixed (tapes, CDs, etc.)

ii. Copies – any other type of object in which a work can be fixed (from books to canvas to marble to film).

Statute requires that for work to be fixed it must be permanently or stably embodied in a copy or a phonorecord. If it is not fixed, it is not protected. RAM copies do not violate copyright.

EXCEPTION – A live musical performance was given protection in 1994. Under §1101, it is now illegal to make an unauthorized copy of a live musical performance, even though that work is not fixed.

White Smith – unauthorized player piano rolls – are they copies under the statute? – ct held no b/c they were not visually perceptible – but the 1976 Act revokes this and says that a copy includes any material object in which a work is fixed and from whic

lowed –

Photographs are considered protected even if pedestrian b/c decisions have been made by the author

Sarony – Oscar Wilde photo case – protected b/c photographer posed Wilde and had backdrop, etc.

Zapruder – JFK film protected b/c Zapruder exercised minimal creativity in his choice of film, time of day, camera, etc.

c. Scope (§ 102(b))– copyright protection extends only to expression in a work, not to the ideas. Idea-Expression Dichotomy.

Baker v. Selden – No protection over the idea of an accounting system, only the words in the book (expression). B/c forms were necessary to the idea of the system, they were not protected.

Merger doctrine – if there’s only one way (or rather a “mere handful” of ways) to express an idea, then the idea and the expression merge and it