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

ATTACK PLAN
1. DOES THE PLAINTIFF OWN A WORK CURRENTLY PROTECTED BY COPYRIGHT LAW? [if no, stop] 2. HAS THE Δ COMMITTED COPYRIGHT INFRINGEMENT BY VIOLATING ONE OR MORE OF THEPLAINTIFF’S SECTION 106 RIGHTS? [if no, stop] 3. DOES A COPYRIGHT DEFENSE PROTECT THE Δ’S CONDUCT?

To get fancy: cite; reference the “interest analysis” triangle; add rhetorics comments

I. COPYRIGHT AND INTERNATIONAL LAW
a. Berne Convention
II. RHETORICS OF COPYRIGHT JURISPRUDENCE (P. 51)
a. Utilitarian (dominant) [key word: incentive] b. Natural Law
i. Locke and labor model: [natural property right idea] 1. Problem: would put courts in weird position of figuring out how creative stuff was
ii. Hegel and personality model
1. Moral rights: integrity and attribution
2. Really only pertains, if ever, to very fine art
i. Misappropriation[fairness] [darling of RIAA and distributors] Big one, and looks to be getting bigger
“Thou shalt not steal,” no “free ride” “reaping where you have not sown”
More black and white
Problems
the whole point, from the Const, and the 1790 act drafted by the same guys, was promotion of learning, the useful arts, etc.–public use, public domain
and PEOPLE LEARN BY COPYING
c. Public domain
d. New economic rhetoric: neoclassical economic theory
e. Social dialogue, democratic discourse (free information) ([talk to Bill Marshall–says should be pretty much no copyright law at all as a violation of 1st amendment] f. Deference: you’ll see it in opinions, where judges will say, look, defer to Congress

III. DO YOU HAVE A COPYRIGHT? VERY FIRST PREREQUISITES FOR PROTECTION
a. Fixation p. 63
i. White-Smith Music v. Apollo (SCOTUS 1908) (p. 65): key issue perceptability
· First–are the piano rolls copies for infringement purposes?
o Why do we care what a copy is?
o Because that’s the only thing in the list of rights you got under the old pre-1909 copyright act (“sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same”)
o So are they copies of the copyrighted work?
o No, according to court
· But what you want to argue is that in ANY means of reproduction
· What context did our whole body of copyright come out of? BOOKS.
· NOTE: under the current act, they’re STILL not “copies” see § 101; they’re “phonorecords;” “otherwise inexplicable distinction” per book
ii. Now, to avoid White-Smith ambiguities, “articifical and largely unjustifiable distinctions”, Congress adopted broad language, per 1976 act: 102(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.”
iii. Midway v. Artic (7th 1982) (p. 72)[Galaxian speed-up kit; Puckman version of Pac-Man] Artic was arguing that Midway didn’t even have a copyrightable work, because it was transitory/not fixed; court disagreed, holding that because statute says “any tangible medium… from wh

Copyright Act.
a. How much? yes: “simple shapes, when selected or combined in a distinctive manner indicating some ingenuity” (Atari); no, don’t meet de minimus standard: short words and phrases like “Repeat Threepeat” (Dobson); slogans (Alberto-Culver); short musical phrases (Newton) (but see George Harrison); slight variations of musical works; insignia of a soccer team, John Muller; title of a song (Acuff-Rose v. Jostens); video game on-screen graphical instructions (Incredible Techs) because explanatory and utilitarian (see also scenes a faire)
ii. Emphatic reaffirmation and explanation of originality requirement (citing (plus revisit later on more factual compilation issues): Feist v. Rural Telephone (SCOTUS 1991) (p. 81 and p. 228);
iii. Originality/novelty distinction p. 85-86: Unlike the requirement for patents, copyrights do not have to be novel (Alfred Bell v. Catalda); “it is independent creation, not novelty, that is required (Boisson v. Banian). Still, when it looks fishy, courts might balk at calling something “original.”
iv. What is an “author and “a writing”?
Burrow-Giles Litho v. Sarony (Oscar Wilde photo, SCOTUS 1884) (p. 87)Main idea: what is the source of the originality requirement in the Const? Congress