Copyright in Context
Intro
· Copyright law is a federal statute, codified in Title 17 of the US Code
o “Congress shall have power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” – US Cont. Art 1 §6 clause 8
· Why do we need legal protection to promote new technological and creative innovation?
o Development of creative works is costly
§ Actual costs of material
§ Opportunity costs
· IP goods are “public goods”
o 1) Non exclusivity
§ Free-rider potential (especially in digital age)
§ Legal protection attempts to ensure that successful creators recoup what is theirs
o 2) IP goods are “non-rivalrous” (i.e. public goods)
§ Don’t loose anything when someone lights candle from you
· Ways to protect creative works:
o Entitlement (copyright) protections
o K protections (only good if there is an actual K agreement)
o State of the art limitations
o Special purpose technical limitations (ex National Geographic pictures)
Copyrightable Subject Matter
· § 102(a) Copyright protection subsists in original works of authorship fixed in a tangible medium of expression. Works of authorship include the following categories:
o Literary works
o Musical works, including any accompanying words
o Dramatic works, including any accompanying music
o Pantomimes and Choreographic works
o Pictorial, graphic and sculptural works
o Motion pictures and other audiovisual works
o Sound recordings AND
o Architectural works
Fixation
· Definition of fixed:
o §101 – 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 stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
o 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
· Williams Electronics v Artic International
o D contends that there can be no copyright protection for the DEFENDER game’s attract mode and play mode b/c these works fail to meet the statutory requirement of “fixation”
o Source code is copyrightable to the extent it’s original expression
o There is always a repetitive sequence of a substantial portion of the sights and sounds of the game and many aspects of the display remain constant from game to game regardless of how the player operates the controls
o Each image is fleeting, but repeated thousands of times
o Means you’re protecting more than just creative expression. Forcing someone to compete w/ a product in a way that is sufficiently different
o Should be protected under patient, not copyright
· MAI Systems v Peak Computer
o The loading of copyrighted computer software from a storage medium (hard disk, floppy, etc) into the memory of a central processing unit (CPU) causes a copy to be made
§ In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement
o Since we find that the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” we hold that the loading of software into the RAM creates a copy under the Copyright Act
o Congress later overruled this for those who service or maintain this
§ Limits monopoly
§ Limits a company from being paid multiple times on same product
· Hypo 1 – Simultaneous recording by comedian while he performs (while it is transmitted)
o Any audience recording is an infringing copy
· Hypo 2 – Performance not recorded by comedian (just transmitted)
o Any audience recording does not create copyright because fixation is not authorized. So, no infringement, either.
· Performers’ Right to Fixation:
o §1101(a)
§ Grants to performers of live musical performances rights against:
ú The unauthorized fixation of their performances; the reproduction of the unauthorized fixation in copies
ú The transmission or other communication to the public of the sounds or sounds and images of a live musical performance AND
ú The distribution, sale, rental or offering to distribute, sell or rent copies of the unauthorized fixation, wherever the unauthorized fixation occurred
§ Exception to the rule that a performance must be simultaneously fixed in order to be accorded statutory protection
§ Gives the musical performers the rights to any transmission of that performance to any fixation of that performance and to any reproduction or distribution of that fixation
§ Applies retroactively – post ’94 sales of pre ’94 fixations fall w/in the scope of the new federal enactment
Originality
· The second requirement for copyrightability is that a work be an “original work of authorship”
o Author is someone who has written something down or engaged in creation
· From an economic perspective, the mere copyist has supplied nothing to justify the cost of a grant of copyright; from a non-economic perspective, the copyist has supplied nothing of his or her “own”
· Independent Creation
o Can each create the same thing in theory and each get it copyrighted for YOUR work/version
o Words and short phrases such as names, titles and slogans aren’t copyrightable
§ Need roughly 20 words to be copyrightable
§ Use TM instead – only for competition
o Requirements:
§ Had to spring from author’s mind
§ Doesn’t have to be new expression, doesn’t mean novelty
· Doesn’t mean aesthetic merit
o Judges don’t judge originality based on if a work of art is worthy or not
· Feist Publications v Rural Telephone
o To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity
o The first person to find and report a particular fact has not created the fact. He has merely discovered its existence
o Originality requires only that the author makes the selection or arrangement independently (i.e. w/o copying that selection or arrangement from another work) and that it display some minimal level of creativity
· Mannion v Coors Brewing Company
o A photograph may be original in three respects – they aren’t mutually exclusive
§ 1) Rendition
ú There may be originality which doesn’t depend on creation of the scene or object to be photographed and which resides instead in such specialties as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques etc
§ 2) Timing
ú A person may create a worthwhile photograph by being in the right place at the right time
§ 3) Creation of the subject
ú A person can create the scene or subject to be photographed
· Thin Copyright
o Only someone who copies those exact words on something will be deemed to infringe the copyright
o Most of the time the test is if you create something that’s substantially similar, you are deemed to have infringed – a thin copyright requires exact copying
· Why a threshold of originality is desirable
o Most thing, most expressions, we want all the public to use w/o having to pay any royalties
o Danger in trying to fence off small quantitative expressions
o If something is given protection that isn’t creative, it gives them too much of the market and creates an unfair monopoly
o The goal is to encourage creative expression, not grant it
The Idea/Expression Distinction
· §102(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’s described, explained, illustrated, or embodied in such work”
· Two purposes of §102(b):
o To define the line btw what is eligible for copyright protection and what belongs to the public domain AND
o To define the line btw copyrightable and patentable subject matter
· Baker v Selden
o To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public
o The very object of publishing a
k; if you fail to do this, you have no copyrightable work, even if the other requirements are met
· A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, mote picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted.
· A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work
· Entertainment Research Group v Genesis Creative Group
o Derivative works are copyrightable if:
§ 1) The original aspects of a derivative work must be more than trivial
§ 2) The original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any © protection in that preexisting material
ú This is necessary to ensure that © protection isn’t given to derivative works whose originality is merely trivial
o Any differences that exist b/c of functional or mechanical considerations shouldn’t be considered
o © extends to the work by the author to the new work and doesn’t cover the old version for the new author
§ Cant elongate or extend the original © by doing a derivative work
o If slight changes were ok to give a derivative ©, then you are handicapping the original © owner to change their work
§ Don’t want to hold the original © owner hostage to the derivative holder
§ Ex the little part of family guy that have snoopy aren’t © protectable to family guy
Authorship
· §201 ownership of copyright
o a) Initial ownership – © in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of © in the work
§ Constitution gives rights to authors. Unconstitutional rights give rights to author
o b) Works made for hire – in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the ©
· Sole Authorship
o Lindsay v RMS Titanic
§ An individual claiming to be an author for © purposes must show the existence of those facts of originality, of intellectual production, of thought and conception
§ Video crew wanted rights to the video b/c they are the ones that actually shot it
ú Court didn’t grant this ® Lindsay was the “creative force” behind the video ® facts of intellectual production, of thought, and conception
ú Who’s vision is being filmed? Lindsay’s, not the crew.
§ Where the P alleges that he exercised such a high degree of control over a film operation, including the type and amount of lighting used, the specific camera angles to be employed, and other detail intensive elements of a film, such that the final product duplicates his conceptions and visions of what the film should look like, the P may be said to be an author w/in the meaning of the © act
· Joint Authorship
o §101 – Joint work – a work prepared by two or more authors w/ the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
§ The parts must work together, otherwise it’s just a collection
