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Copyright
University of Kansas School of Law
Kautsch, M.A. (Mike)

Copyright Law Outline
 
I.              Introduction [162d] a.     A copyright is primarily an exclusive right to reproduce an original work. That right falls to the person who created the work or to her employer.
b.     Copyrights spring from the same constitutional clause mandating that Congress “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.” 
                                          i.    Like patents, copyrights are exclusively regulated by federal law. State courts have no jurisdiction over copyright issues.
                                         ii.    Unlike patents, copyrights are not granted by the government after a complex and expensive application process. Instead, a copyright automatically attaches to an original work as soon as it’s created. You can mark copies with a legal notice including the © symbol. Importantly, you can register, which is sometimes recommended, your copyright with the U.S Copyright Office which was required until 1989. 
 
II.             What Copyright Covers [568cb]  
III.            Requirements
a.     17 U.S.C. §§ 104A, 401-412, 601, 701-709
b.     Notice for Copyrights Arising on and After March 1, 1989 [569-570cb]                                           i.    Over the course of the twentieth century, the notice requirement for copyrights was gradually relaxed. A 1909 and 1976 Act eased the notice requirement, and finally the Berne Implementation Act entirely eliminated the notice requirement in order to bring the United States copyright law into compliance with the Berne Convention for the Protection of Literary and Artistic Works, to which the United States adhered, effective, March 1, 1989. 
c.     Notice for Copyrights Arising Before March 1, 1989 [569-570cb] 
                                          i.    Although copyright notice as a condition to protection has not disappeared from the Copyright Act, it will continue to be important in copyright litigation for many years to come. 
1.     The reason is that the Berne Amendments operate prospectively, eliminating the notice requirement only for copies or phonorecords disseminated after March 1, 1989.
2.     Any work that was published before the amendments’ effective date without the then-required notice fell into the public domain unless the error or omission was excused by the terms of the statute.
                                         ii.    The omission of notice from copies of a protected work may be cured, preventing the work from entering the public domain. Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189 (2nd Cir. 1985) [570cb, 65] 1.     Sparkle (D) contended that Takara’s failure to affix a copyright notice to toys distributed in Japan placed such toys’ design in the public domain, allowing Sparkle (D) to legally copy them. 
2.     Ct. Hasbro (P), as the copyright holder, had the ability to cure the omission. By adding the notice within fiver years of the original publication of the work, the omission was cured. 
3.     Editor’s Analysis: The court rejected the proposition that an intentional omission of the copyright notice could not be cured. In this case, the notice was omitted because it was unnecessary in Japan. Thus, a question as to intent existed. Further, the court reserved the question of Hasbro’s (P) responsibility to use efforts to mark the unmarked toys previously distributed. 
                                        iii.    Berne Amendments [577cb] 1.     Doubtless the most dramatic feature of the Berne amendments to the 1976 Copyright Act was to make the affixation of copyright notice optional rather than mandatory. 
a.     Copyright owners nonetheless still have good reason to affix copyright notice to copies or phonorecords of their works. Affixation of notice may affect the copyright owner’s monetary recovery for infringement. 
 
                                        iv.    Publication in Copyright Law [579cb] 1.     Publication has played an important role in U.S. copyright law from the first Copyright Act, Act of May 31, 1790, to the present. The definition and consequences of publication have changed over time.
a.     1909 Act [579b] b.     1976 Act [580cb]                                          v.    Registration [580cb] 1.     17 U.S.C. §§ 408 – 412
2.     Reasons to Register [585cb] a.     Although not a condition of copyright protection, a copyright owner may obtain registration for her work at any time during the copyright term. The 1976 Copyright Act offers several incentives to prompt registration. See incentives at 585cb. 
b.     Before Berne applied, March 1, 1989, § 411(e) of the 1976 Act generally required copyright owners to obtain registration in order to file a copyright infringement action. 
                                                                                          i.    As amended, § 411(a) retains this requirement for works originating in the United States. 
                                        vi.    Deposit [586cb] 1.     Deposit of the copies or phonorecords of copyrighted work in the Copyright Office, though not a condition to copyright protection, is nonetheless mandatory. 
a.     Failure to deposit copies or phonorecords within three months after receiving a written deposit form the Register of Copyrights will expose the person obligated to fines and charges. 1976 Act § 407(d). Section 407(d)’s purpose is to supply the Library of Congress with copies and phonorecords for its collections.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
IV.            Statutory Subject Matter
 
a.     17 U.S.C. §§ 102, 103, 105, 1301, 1302
 
§ 102. Subject Matter of Copyright: In General
 
(a) Copyright protection subsi

seful article, as distinguished from the article itself, may be considered a visual OWA. 
a.     However, that rule applies only if the design can be identified separately from, and exist independently of, the article’s function. 
d.     An Original Work
                                                                                          i.    The originality of an OWA does not imply that it is new, unusual, or innovative. The work is original if it is not copied from a pre-existing source, but is independently created. It does not matter that the exact same work was created in another place or time by someone else, so long as the author was not exposed to or influenced by the earlier work. 
 
b.     In no case does copyright protection for an original work of authorship extend to any idea, 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 . Baker v. Seldon, 101 U.S. 99 (1879) [591cb]  
c.     The Idea-Expression Distinction [595cb]                                           i.    § 102(b) enshrines the longstanding rule of Baker v. Seldon. 
1.     This case recognized the need for a legal distinction between functional works, such as treatises on bookkeeping, and fanciful works, such as “ornamental designs, or pictorial illustrations. Of these it may be said, that their form is their essence, and their object, the production of pleasure is their contemplation.”
a.     The distinction explains why function and factual works characteristically receive a narrower scope of protection than do fanciful works. 
b.     It also demonstrates that the term. “idea” is not to be taken literally, but rather should be viewed as a metaphor for a work’s unprotected elements—method of operation in the case of functional works; basic elements of plot, theme and character in literary works; or line, color and perspective in works of visual art. 
d.     Characters [597cb]                                           i.    Copyrightable characters may emerge from literary works, dramatic works, pictorial works and audiovisual works. To be protected, fictional characters must possess the same degree of original expression required of other copyright subject matter.
 Learned Hand states the test of copyright