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

Copyright–Fall ’09

1.Landscape of Copyright
A. Attack Plan:
i. Does P have a valid copyright in the work?
ii. Has the D committed copyright infringement by violating one or more of the P’s exclusive rights under § 106 or §106A?
iii. Does a copyright exemption or defense protect the P’s conduct through §§ 107-122?
B. To attack a copyright challenge
i. Does the P have a valid copyright in the work
ii. Did the D violate one of the P’s exclusive rights given by section 106
iii. Are there any defenses
iv. Determine what section of statute applies and its definition (ex. Fixation requirement)
v. Show how your creation has successfully fulfilled a requirement (Ex. How does your visualization of your creative property meet the fixation requirement).
C. 1909 Act still applies to all copyrights arising before 1/1/1978
i. If a US work was published before 1923, it is in the public domain (though it may not be in the public domain in another country)
D. Copyright is a form of legal adaption, a response to new technologies in the reproduction and distribution of human expression.
There are three broad swaths of protection of created stuff:
i. Patents: providing for a limited monopoly for new and inventive designs
ii. Trademark: prevents imitators from passing of their stuff as the original
iii. Copyright: protects original works of authorship, which now includes literary, artistic, musical works as well as architecture, computer stuff, and some databases.
All three of these provide protection for intangible creations of the mind, are rooted in fed law, and are most developed in wealthier countries.
E. Copyright is mostly for longer works (ie not for a logo or similar). One big exception to this is characters (ie Mickey Mouse is copyrighted, not TMed).
i. Ideas cannot be protected under copyright, that is what patents are for. Patents are for a short time, copyright last much longer, well-tended TMs will last forever.
ii. Trade secrets are mostly protected by state law.
iii. Moral rights (right of an artist to have his name associated with his work) and right of publicity (you get paid when your image is used) are also mostly reged by state law.

2.History of Anglo-American Copyright Law
A. Copyright Act of 1719 (Queen Anne Act): Originally, members of the Stationers’ Company had a crown-granted monopoly on printing of works. With the Copyright Act of 1710, authors got the ownership of their works. This was originally passed for ‘the encouragement of learning.’ If folk can make money from their writing, they’ll be more inclined to write and create.
B. The Constitution: 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
i. 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
ii. “promotes science and useful art” shows that copyright laws have a specific purpose for public benefit
a. This goal is to be achieved through provisions of an economic incentive:
iii. “Securing for a limited time” gives a monopoly to author but protects the public since time is limited
iv. “exclusive right” protect author by protecting the monopoly
C. Copyright Act of 1909: allowed for an extended copyright period and applied to all written works.
i. The period began when the work was first published.
a. Non-written works, not intended for reproduction (ie speeches) were not covered.
ii. important features of the 1909 copyright act
a. copyright subject matter was expanded to include “all writing of an author”
i. e.x. photos and music was added and considered writings st
b. bifurcated durational system : first term of 28 years plus a renewal term of 28 years
c. Protection began on publication
d. common law copyright: 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
iii. The law was not modified in the 1930s to comply with the Berne Convention (an intl agreement on copyright and such).
iv. There was also the ability to protect an unpublished work by filing w/ the copyright office. If you make something with a copyright when publishing, you’d be protected, else, no protection until this statute.
v. 1909 act still relevant
a. 1976 act nor any subsequent act extends protection retroactively to domestic works
i. So there are still works controlled by the 1909 act
ii. Works that entered the public domain under 1909 aren’t revived
iii. 1976 act specifically incorporated provisions of the prior law and retained standards developed in 1909 Act case law for important issues
D. Copyright Act of 1976:
i. Changed the 1909 act in several ways:
a. Copyright attaches when the work is fixed, not published. This greatly expands the scope of copyright.
b. Copyright is expanded to cover “original works of authorship”:
i. literary works
ii. musical works
iii. dramatic works
iv. pantomimes and choreographic works
v. pictorial, graphic, and sculptural
vi. motion pictures and other audiovisual works
vii. sound recordings
c. The unitary idea of copyright is dead. Owner can grant less than all the rights he possesses in a work, and those rights he assigns can be exploited in any way by the asignee.
d. Term of copyright changed:
i. For works of known folk: life of the author plus 50 yrs (extended by an additional 20 in 1998).
ii. For anonymous, pseudonymous, or works for hire (WFH): term of 75 years from publication or 100 years from creation, whichever was less
e. Transfers of interest can be terminated after specified periods of time
f. Formalities are still important, but less so than before
g. Five exclusive rights of copyright ownership:
i. Reproduction
ii. Adaptation
iii. Distribution
iv. Performance
v. Display
h. Fair use: the broadest exception to the exclusive rights
i. Statutory licenses: allow access to copyright works if certain fees, etc are paid.
ii. Main amendments:
a. DMCA: digital Media and copyright act made doing things which would break anti-copy encryption on digital media a copyright violation.
b. Copyright extension act (added 20 years onto term)
c. Ratification of Berne convention, which di

h are not fixed:
a. Improvisational work:
b. Live performance is only copyrightable if it is reduced to a tangible form as well, ie recording it, writing a script, etc.
vi. Midway v Artic addressed the issue of fixation and new technology
a. The work in question was a pac-man game and defendant claimed that there was no fixed pattern that is really discernable to the human eye
b. Ct defines fixation
i. 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 permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
ii. Judiciary committee states the definition of fixation would exclude from the concept purely ecanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a tv or other cathode ray tube, or captured momentarily in the memory of a computer.
c. Ct rejects this claim and looked to the statutory definition and concludes that the fixed definition of 102 is broad and allows for this new technology to be fixed for the purposes of the statute; works no longer need to be perceived by the human eye
vii. Roles of fixation:
a. Fed copyright protection begins when a work is fixed (under 1976 act)
b. Infringe may occur when a work is fixed in either a copy (for written works, etc) or a phonorecord (for sound works)
c. Infringe analysis reqs comparing the original work and the infringe work. The fixation in a tangible form req makes this comparison easier
d. Registration of copyright generally reqs depositiong a copy of a work, and intangible stuff can’t be deposited.
B. Originality
i. 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.
ii. Originality is not defined in the 1976 act, and congress intended the definition to be the one that had developed in the case law from previous acts.
a. There are two parts to the current CL definition:
i. Independent creation by the author
ii. A modest quantum of creativity
b. Two important effects of originality req:
i. A work that lacks originality is not protectable
ii. Non original elements of a protected work are not themselves protected
c. Originality does NOT include requirements of
i. Novelty
ii. Ingenuity
iii. Aesthetic merit