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

Final Copyright Outline

The Landscape of Copyright
I. Basis for congress power to create copyright law
i. The Constitution
1. Art. 1 section 8 clause 8 states: Congress shall have Power….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
2. The constitutional language suggests that the dominant purpose of the Framers was to promote the creation (and dissemination) of knowledge, so as to enhance public welfare
(a) “promotes science and useful art” shows that copyright laws have a specific purpose for public benefit
3. This goal is to be achieved through provisions of an economic incentive:
(a) “Securing for a limited time” gives a monopoly to author but protects the public since time is limited
(b) “exclusive right” protect author by protecting the monopoly

II. Copyright Act of 1909
i. important features of the 1909 copyright act
1. copyright subject matter was expanded to include “all writing of an author”
(a) e.x. photos and music was added and considered writings st
2. bifurcated durational system
(a) first term of 28 years plus a renewal term of 28 years
· total of 56years
3. publication
(a) copyright protection begins at publication, with the proper formalities
4. common law copyright
(a) since unpublished works were not covered by the act, a dual system developed between state protection for unpublished works and a federal system for published works
ii. 1909 act still relevant
1. 1976 act nor any subsequent act extends protection retroactively to domestic works
(a) So there are still works controlled by the 1909 act
(b) Works that entered the public domain under 1909 arent revived
(c) 1976 act specifically incorporated provisions of the prior law and retained standards developed in 1909 Act case law for important issues
· i.e. originality and infringement

III. Copyright Act of 1976
i. attachment of protection
1. fixation in a tangible form
(a) this dramatically expands scope of federal law
ii. subject matter
1. protects original works of authorship
(a) the act establishes broad illustrative categories of copyright subject matter
· literary works
· musical works
· dramatic works
· pantomimes and choreographic works
· pictorial, graphic, and sculptural
· motion pictures and other audiovisual works
· sound recordings
iii. ownership
1. indivisibility is abolished
2. owner or owners can grant less than its whole bundle of rights to a third party
iv. duration
1. single term of life plus 50 years
2. an alternate term of 75 years from publication or 100 years from creation, whichever was less, was provided for anonymous or pseudonymous works, and works made for hire
v. formalities
1. still significant, but not as much as under 1909
(a) notice
(b) registration
vi. exclusive rights
1. section 106 enumerated 5 exclusive rights of copyright ownership
(a) the rights to reproduce
(b) right to adapt
(c) distribution
(d) perform
(e) display
vii. fair use
1. for the first time, fair use was codified

IV. Copyright and Interest Analysis
i. although congress has the power to enact copyright laws, they are under no obligation to do so
1. thus, the content of copyright law is the outcome of centuries of advocacy on behalf of various constituencies whose interests are affected by the laws governing artistic and literary property
ii. Development in copyright laws
1. Who benefits from any particular development or set of developments in copyright law is an important aspect of understanding copyright jurisprudence
(a) 3 groups in society who might benefit from a change in copyright law
¨ individual creators of the IP
¨ distributors / publishers
¨ consumers of the information

3 main questions of copyright law
Question 1: Is there an ownership of a valid copyright
– section 102(a) provides: Copyright protection subsists in original works of authorship fixed in a 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
Question 2: was there a violation of an exclusive right
– section 106 stipulates there are 6 rights that accompany a copyright
Question 3: is there a defense
– fair use or other affirmative defense

I. Prerequisites for Copyright Protection
i. the act establishes two fundamental prerequisites for copyright protection
1. originality
2. fixation
i. Fixation
1. Constitutional Requirement
(a) Congress may make laws to protect the “writings of authors”
(b) This “Writings” requirement has been construed by the Supreme Court to mean any physical rendering of the fruits of the author’s creativity (Goldstein v. California)
· Therefore, Works not fixed under the terminology of the present statute, a work is incapable of protection unless it is fixed and in a tangible medium of expression
¨ Thus, it has to be written down in some way in order to gain copyright protection
2. 102(a) Statutory language
(a) fixed in a tangible medium of expression,
(b) now known or later developed,
(c) from which they can be perceived, reproduced, or otherwise communicated,
(d) either directly or with the aid of a machine or device
3. Intent of Broad language
(a) The broad language of the statute was intended to avoid the artificial and largely unjustifiable distinctions under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed.
· White Smith v. Apollo addressed the question of whether piano rolls were such copies for infringement purposes
¨ The court defined copies using a lay definition for a musical composition to be, “a written or printed record of it in intelligible notation.”
¨ Ct used the PERCEPTIBILITY analysis and reasoned that since it is not susceptible of being copied until it has been put in a form which others can see and read, and since the statute has not provided for the protection of the intellectual conception apart from the thing produced
¨ Holmes dissent a judicial deference
1. Holmes felt there was a tremendous unfairness and things the language is wrong and on principal, anything that is a mechanical reproduction should be a copy, but still concurred because he said it was a legislative issue
· Importance of Apollo Today
¨ even though a broad definition of fixation was used in the 1976 act to avoid cases such as Apollo, section 101 of the copyright statute defines copies as mate

an authorship.
(c) Intent of author
· Does originality require an intent on the part of an author to create a work of authorship?
¨ Nimmer say yes
¨ however, in some circumstances randomly generated expression can be granted copyright protection
1. LR article, Durham, The random muse, suggests that creativity can coexist with indeterminacy, and a mixture is probably the rule in authorship rather than the exception.
(d) Bleistein v. Donaldson
· Significance of the case
¨ took control out of the hands of the court to decide what should and should not be copyrighted
1. Holmes felt that regardless of use, creativity is still involved
2. Therefore, Bleistein requires only a low degree of originality and artistic or literary merit to obtain a copyright
¨ free to copy the original, but not copy the copy
1. Gross v. Seligman à cherry blossom girl found to infringe because not sufficiently different and was a copy of a copy
3. Ideal/expression dichotomy
(a) Copyright law protects the expression, and not the ideal
· Once the ideal is published, that ideal is given to the public domain
¨ unless protected by another regime
· Why?
¨ promotes progress of science and useful art
¨ allows someone to read ideal and improve on it
¨ copyright term is long and don’t want a monopoly on ideal
(b) Baker v. Selden
· 4 themes
¨ Ideal / expression dichotomy
1. Copyright protects the expression of an idea, but not the ideal itself.
2. Once the author reveals his work to the public, any ideals contained in that work are released into the public domain, and the author must be content to maintain control over only the form in which he first clothed the ideal
3. use/explanation distinction
a. ct draws a distinction between use and explanation
b. qà are they putting it in their own words or are they republishing the words of the original author
c. the explanation of the art is specific to the author, but the use of the art is something anybody should be able to do, provided no patent.
d. Thus, the use of the art is a totally different thing from a publication of a book explaining the art.
¨ patent/copyright distinction
1. a patent holder gets an exclusive monopoly on the use and has a right to stop anybody from using it
2. Copyright does not reach “use”, so the ideal behind a work is available to the public so that everybody in the public could use the ideal.
¨ uncopyrightability of blank forms
1. blank forms can not be protected
a. there are some exceptions
b. ex. Blanks for auditing
i. have to ask if original, in that is it an ideal, or is it something that is really creative as a particular expression
¨ Merger Doctrine