I. THE CONCEPT OF COPYRIGHT
-copyright—infinitely divisible and alienable bundle of exclusive, though variously limited, property rights granted an author for a limited time to reproduce, distribute, perform, adapt, display, and create derivative works from an author’s artistic work. These artistic works are listed in § 102.
-There are no moral/dignitary interest rights in US copyright law.
-Why allow copyright? Art. I, § 8, cl. 8 of the US Constitution empowers Congress “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
-sources of copyright law: the US Constitution, Federal Copyright Act, state copyright law
-Copyright Act purposes:
-primary—promotion of arts and sciences
-secondary—financial reward to the creator
-reasons US copyright law has changed:
1) ridding formalistic requirements
2) new technology
3) international treaty obligations
4) lobbying
# Burrow-Giles Lithographic v. Sarony (1884). Photos can be protected by copyright.
# Bleistein v. Donaldson Lithographing Co. (1903). Ads can be protected by copyright.
# Forward v. Thorogood (1993). Though physical transfer created a presumption of transfer of copyright at common law, today it is merely evidence.
^§ 202—ownership of the copyright is different from ownership of any material object the copyright material is manifested in.
II. COPYRIGHTABLE SUBJECT MATTER
-Copyright protects original works of authorship fixed in any tangible medium of expression. § 102 (non exhaustive list).
-original work and tangible object must merge through fixation in order to produce subject matter copyrightable under the Act.
A. Originality (independent creation + creativity)
-not novelty, merely independent creation
-not esthetic merit, merely some minimal degree of creativity—there are various enunciations of this idea.
1) more than a trivial variation of a previous work
2) recognizably “her own”
3) some creative spark, no matter how crude, humble, or obvious
4) must exceed the utterly stilted or trite (not cliché)
5) amount of allegedly copyrightable material probative, though not dispositive. 10 page essay seems copyrightable but that there are 10 pages is only indicative of that. Length of sentence is not dispositive.
-minimal creativity—want to protect public’s right to use simple designs & phrases w/o infringing. Trying to encourage creative expression, not give lots of people monopolies.
-just b/c there are multiple ways to phrase something doesn’t mean one phrasing of it is copyrightable.
-thin copyright—only one particular form of expression is copyrightable. If you change any of the words, it is no longer copyrightable.
# Magic Marketing v. Mailing Services of Pittsburgh (1986). Envelopes that said “urgent material”, “important documents enclosed” not copyrightable b/c they lacked enough creativity.
^Court has final say of what is copyrightable b/c it is a constitutional question. A registration certificate gives prima facie evidence in a court that the information contained in the certificate is factual. The existence of a certificate provides prima facie evidence in a court that the material is copyrightable.
not copyrightable copyrightable
-mere list of ingredients -some labels
-some instructions
-fragmented words and phrases
-book titles
-clichés
-fonts
-lettering/coloring
-forms of expression dictated solely by functional considerations
B. Works of Authorship
-very broad but categorized by § 102a (non exhaustive).
C. Fixed in any tangible medium of expression
-fixed (§ 101)—sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
-a performance is fixed only if recorded simultaneously. If not simultaneously fixed, not copyrightable.
-§ 1101 provides an exception for musical performances—musical performers own rights to transmission, fixation, reproductions, and distribution of any fixation of their performances. This was enacted pursuant to the commerce clause, so there is no duration limitation to this protection.
-producers & performers can share in a copyright
-phonorecords (§ 101)–fixations of sounds, and sounds only
-copies (§ 101)–nonsound fixations, including the first fixation
-RAM is fixed.
-Streaming is more difficult.
D. Expression, not ideas
-§102b—copyrighted protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, discovery, or facts.
# Baker v. Selden (1879). Π wrote a book on an accounting method. In the book was a blank form used to carry out the method. Court held there is expression in the forms, but the expression of the form cannot be separated from the ideas of the accounting method, so the forms are part of the idea and are not copyrightable. *Copyright law protects articulation of the method, but not use of the method.
^Merger doctrine: Where the idea it teaches cannot be used w/o employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the idea, and given therewith to the public.
^Court could have said the forms aren’t sufficiently creative. Court could have used the thin copyright idea and said they were only copyrightable in their exact expression.
# ADA v. Delta Dental (1997). Taxonomy of dental procedures. The classification was a creative endeavor that was copyrightable. ADA invited dentists to use the system, b/c they were copying an insubstantial amount of a process. However, D may not use
ed upon one or more preexisting ©able works, which may take any form in which a work may be recast, transformed, or adapted.
^Derivator must have original’s permission. ^Copyright only extends to any original part of the derivative work. **All derivative copyrights have only thin copyrights–only the changes are copyrighted.
^There is a higher creativity standard for derivative works: otherwise the original copyright owner would lose his licensing power. ^There must be a substantial variation in a derivative work in order for it to be original and copyrightable. ^If the original is in the public domain, derivator doesn’t need anyone’s permission, but there still must be a substantial difference.
^Minority rule does not require the heightened variation for derivative works.
^Majority rule–originality is a jury question. Minority rule–originality is a question for the judge.
# L. Batlin & Son v. Snyder (1976). Public domain bank—Õ’s bank—D’s bank. Õ’s bank is not copyrightable b/c it took no skill to make, and there weren’t many changes from the public domain bank. The changes that were made were due to the change in materials. No skill can = no creativity/originality. Lots of skill can = originality, even in an exact replica (true artistic skill).
^Medium neutrality: translation into a different medium is not sufficient to constitute originality. It is probative but not determinative.
^If practicality or functionality requires a different type of expression, it’s not original. Idea merges w/ the expression.
# Ets Hokin v. Skyy Spirits (2000). Skyy says photograph of bottle is a derivative work of the bottle. Court holds bottle & label not copyrightable, so the original photograph IS copyrightable. Derivative works must be based on underlying copyrightable works. This isn’t explicitly in § 101 but should be read in.
V. COMPUTER PROGRAMS
-Application programs accomplish a task, I.e. do accounting.
-Operating systems manage the internal functions of the computer and facilitate use of application programs, I.e. makes the computer work. Often perform tasks that aren’t visible to the user.
-source code–language computer programmer writes.
-object code–translation of computer programmer’s program into language the computer can read (1s and 0s).
