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University of North Carolina School of Law
Gerhardt, Deborah R.

Gerhardt, Spring 2015
1.      Does the P own a work currently protected by copyright law?
2.      Has the D committed copyright infringement by violating one or more of the P’s § 106 rights?
3.      Does a copyright defense protect the D’s conduct?
The Copyright Act grants limited statutory monopoly in ORIGINAL WORKS of authorship that are FIXED in a TANGIBLE MEDIUM OF EXPRESSION. (§ 102)
Public Domain= includes expired CR materials and works from before the Act was enacted
Always federal law—based on Article I cl 8 of the US Constitution
·         Wheaton v. Peters: no common law CR rightsà only FEDERAL STATUTE
Folsom v. Marsh: establishes FAIR USE
Rivalrous good= if someone takes your good, you don’t have it anymore (a car)
Non-Rivalrous good= if someone steals your good, you still have it (music)
Your CR rights exist APART from the thing itself—just because an owner gives the good to someone else, they still retain their CR rights in it
§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  Works of authorship include the following categories:
1.      Literary works;
2.      Musical works, including any accompanying words;
3.      Dramatic works, including any accompanying music;
4.      Pantomimes and choreographic works;
5.      Pictorial, graphic, and sculptural works;
6.      Motion pictures and other audiovisual works;
7.      Sound recordings; and
8.      Architectural works.
(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.
I. Fixation
“Fixed”= when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.  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 (§ 101)
Williams Electronics v. Artic International: coin-operated video games have an attract mode (repetition of a sequence of sights and sounds from the game) and a play mode—whether the ATTRACT mode is CR-able?
·         IS CR-able—focuses on the repetition of the sequences
MAI Systems Corp. v. Peak Computer Inc.: P manufactured and designed software—includes the operating system, software needed to run other programs on the computer; D maintains computer systems for clients (does troubleshooting), and P’s computer is about 50-70% of D’s business—guy left job at P and joined D + other 3 employees—some of P’s business switched to D
·         IS CR-able= Copy created in RAM can be “perceived, reproduced, or otherwise communicated”à loading of software into RAM creates a copy
·         P has to prove fixation to prove 106 was violated—have to be fixed IN ORDER to prove violation
Infringement does not need to be fixed—P’s work does, but D’s work doesn’t
White-Smith: piano rolls
·         NOT A COPY because musician can’t look at it and perceive what it is—it was a question of #2, is it a copy?
·         Mechanical reproductions are NOT COPIESà THEY ARE PHONORECORDS, which are granted mechanical rights
If you photograph anything, then it becomes fixed—but the embodiment has to be done by the AUTHOR—so if an observer videos a street performer, the observer has NO CR RIGHTS in that performance
II. Originality
Intentionally NOT defined in the statute because Congress wanted to leave it to the courts to interpret
Originality: work was independently created by the author and it possesses at least some degree of creativity (Feist Publications v. Rural Telephone Service)
Feist Publications v. Rural Telephone Service: D is a phone company and the state regulations say they have to annually publish white and yellow pages for customers—P is a publishing company that specializes in area-wide directories—theirs covers more area than D’s and it’s free—D refused to license to P their listings, which would’ve hurt P because they’d have a gap in their listings—P used the listings anyway—P did investigate too and included street addresses too, where D did not—4 listings were fakes that D had put in to trap P
·         NOT ORIGINAL ENOUGH because the listi

esults but different arrangement of the book-keeping forms
·         Of course P has CR protection in the ACTUAL TEXT OF THE BOOK, but the question here is whether they can copyright their SYSTEM of book-keeping
·         NO CR PROTECTION—science/rules and methods of art have final end in application and use
Doctrine of Merger: when an idea can be expressed in only a “limited number” of expressive forms, “copyright does not extend to the subject matter at all.” (Morrissey v. Proctor & Gamble Co.)
A.A. Hbenling v. Universal City Studios: P wrote a book about the Hindenburg, did lots of research for it—factual account, written in objective, reportial style—hypothesized that Spehl was responsible for sabotaging the Hindenburg—D wrote a book on a similar hypothesis but in more poetic/literary way—acknowledged that he used P’s book but also came to hypothesis using another’s book—lots of research and interviews—D’s book was made into a movie—P sued D and Universal for CR infringement
·         Where the idea at issue is interpretation of an historical event, our cases hold that such interpretations are not copyrightable (A.A. Hbeling v. Universal)
·         Scenes a faire: incidents, characters, or settings which are as a practical matter indispensable or at least standard in the treatment of a given topic are not copyrightable (A.A. Hbeling v. Universal)
·         Works of historical subject= 2nd author may make significant use of a prior work, so long as he does not bodily appropriate the expression of another
ADA v. Delta Dental: whether TAXONOMY is CR-able—P created code on Dental Procedures and Nomenclature—D has produced a similar code that includes mostly same numbering and short descriptions as P’s
·         Taxonomies are copyrightable, because the classification is a creative endeavor.  (ADA v. Delta Dental)  How-to works are rarely categorized as systems.  Here, the code’s descriptions do not merge with the facts.