Rule #1:Pick Out EVERY SINGLE COPYRIGHTABLE EXPRESSION; Rule # 2:Pick Out EVERY EXCLUSIVE RIGHT & WHO OWNS EACH
1. Copyrightable Subject Matter – §102(a) (ideas, discoveries & processes explicitly prohibited – §102(b) – Feist)
a. Literary (includes translations)
i. Computer Programs
1. work at issue:
a. Source code runs the computers
b. Application code is what the users understand
c. Object code is expression as code read by the computer (i.e. device)
2. fixed in ROM/RAM
3. §101 defines computer programs so probably copyrightable.
a. Much of the expression is “dictated by the proclivities of technicians & limited by significant hardware, compatibility and industry requirements and application of the scenes a faire doctrine meant that there was nothing left that could be protected by copyright” (Mitel v. Iqtel)
ii. Characters (literary or audiovisual)
1. Is this character sufficiently & distinctively developed? (Hand Test)
a. movie characters are more easily protected (bodily appropriation) (Metro-Goldwyn-Mayer)
b. literary characters are less easily protectable (verbatim copying)
2. Characters is so developed as to constitute the story told (9th Circuit Test)
a. Can the character be separated from the story being told or is he a necessary chessman?
3. Development of new aspects are newly copyrightable & not derivative
b. Musical
c. Dramatic (Theatre?)
d. Chorographical
e. Pictorial, Graphic & Sculptural
f. Motion Picture & Audiovisual (In sequence or as still frames)
g. Sound Recordings
h. Architectural (created after 12/1/1990) (still apply functional analysis)
i. “design of a building as embodied in any tangible medium of expression” (i.e. a building, plans or drawings)
ii. “arrangement & composition of spaces”
iii. exceptions & limitations
1. unoriginal features – §101
2. pictures, paintings, photographs – §120(a)
a. if the building in which the work is embodied is located in or ordinarily visible from a public place.
3. Alteration to & destruction of buildings – §120(b)
a. You can change or destroy the building without the consent of the author
b. Limits author’s right to his moral rights & a limitation on derivative works.
4. built b/f 1990 (blueprints only)
2. Requirements (easy to get copyright)
a. Originality
i. Independent Creation + minimal creativity
1. Creative spark, albeit crude
2. “Rule of Doubt” – if unsure, grant the copyright.
ii. Primary Works at Issue for Originality
1. Derivative Works – based upon preexisting work
a. Parody – “Hairy Woman”
2. Compilations – arrangement of preexisting facts in a way that constitutes a new original work
a. any CD (compilations includes all collective works – §101)
3. Collective Works – collection of separately copyrightable works (requires license from each)
a. “Best American Short Stories”
iii. Excludes: 1 Standard Phrases, 2 Clichés, 3 Directions, 4 Fonts
b. Fixation
i. “any tangible medium of expression now known or later created from which can be perceived, reproduced or otherwise communicated directly or with the aid of another machine or device” longer than a “transitory period”
c. Ownership
i. Authorship (All copyrights initially invest in the author – §201)
1. Person who creates the work
a. “the person who actually creates the work, that is, the perso
i. If the thing is useful – it maybe should have been patented rather than copyrighted.
ii. Separability
1. Physical (Belt Buckle)
a. Can you physically carve out the copyrighted part from the useful part.
2. Conceptual (Ribbon Bike Rack)
a. Primary Use Tests: Aesthetic or Functional?
i. Is it capable of being used in ways that are purely expressive? (Belt Buckle)
1. Within normal use? (an engine as art is not, though a belt as a necklace might be)
ii. Is the design required by the useful function? (merger doctrine – Mannequins)
iii. Is it merely an ornamental/superfluous design on or within the useful article? (Denicola Test)
1. a design on a lamppost.
iv. Did functional concerns influence the design? (Brandir Ribbon Rack)
1. artistically designed minimalist lamps is not superfluous, but efficient – thus barred.
iii. Subsequent Functionality
1. If a work after creation is put to functional use it is not made functional.
If work is replicated with intention of functional use – it is functional.
