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

I.                   GENERAL
a.      Plan of attack:
                                                              i.      Does Plaintiff have a valid copyright?
                                                            ii.      Did Defendant violate one of the plaintiff’s exclusive §106 rights?
                                                          iii.      Are there any defenses?
b.      Landscape of IP law:
                                                              i.      Patentsà protect idea
1.      Last 20 years
                                                            ii.      Trademarksà protects symbols and short phrases.
1.      Last forever.
c.       Constitutional power:
                                                              i.       Art I., Section 8, Clause 8: The Congress have the 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.
1.      Tensions: promote science and useful arts
2.      Securing LIMITED time
3.      Then, to the public domain.
4.      Interpret “writings” very broadly.
d.      History of copyright law:
                                                              i.      1790 Act:
1.      Protected maps, charts, books.
2.      Encouraging learning.
3.      US Citizen for protection
4.      Right to print, reprint, public and vent for 14 years (with possibility of renewal for 14 years)
                                                            ii.      1909 Act:
1.      Federal began with publication (contrast from: fixation, now)
2.      Publication + formalities = protection
a.      What is publication?
3.      Unpublished = not registered.
a.      This could extend copyright protection.
4.      1955: terms expanded (28 years + 28 year renewal)
                                                          iii.      1976 Act:
1.      Protection begins at fixation
2.      Can separate rights and give them away
3.      Duration changes
4.      §106 à enumerates the rights
                                                          iv.      New legislation:
1.      1988: Berne Convention:
a.       Right of formalities
b.      International protection.
                                                              i.      Utilitarian:
1.      Incentives
2.      Economic reasoning
3.      Rewards for writing/creating
4.      Stimulate the public good
5.      Criticism:
a.      not always writing for money (i.e. academic authors)
                                                            ii.      Natural Law:
1.      Labor-based rewards
2.      Constitutional language rewards “authors”
3.      Criticism: no longer use sweat of the broad theory.
a.      Should we compensate “work ethic”?
                                                          iii.      Hegel/Personality Model:
1.      Workà reflection of personality
2.      Collective v. individual
3.      Criticism:
a.      Work doesn’t always reflect personality.
b.      Taken to extremeà protects idea.
                                                          iv.      Misappropriation:
1.      Of valueà yields profit
2.      No free-riders
3.      Criticism:
a.      Doesn’t recognize that things can/should be published
b.      Public loses.
                                                            v.      Public domain:
1.      Question: is a robust public domain a constitutional right?
2.      Open-source/open access movement
3.      Allows use/accessibility
4.      Criticism: economically inefficient
                                                          vi.      Deference:
1.      Sent to congress; not for the courts to decide.
f.        International Copyright laws:
                                                              i.      Treaties set floor/minimum for protection
                                                            ii.      Berne Conventionà if give citizens of your country protection, all US authors have protection in all countries that are members of the Berne Convention
                                                          iii.      International effects on copyright law:
1.      Formalities
2.      Duration  
II.                FIXATION
a.      General
                                                              i.      Constitutional requirementà”writing” clause interpretation
1.      Requires physical rendering.
                                                            ii.      Codified in § 102 (a)
1.      Copyright protect exists, in accordance with this title, in original works of authorship, fixed in any tangible medium of expression, not 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.      Reasons for fixation:
1.      Preserves for future generations.
2.      Provides notice of particular version that person had created.
3.      Creates efficiencies
4.      Less argument about what the work actually is.
                                                          iv.      Definitions in § 101
1.      Copiesàmaterial objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phono record, in which the work is first fixed.
2.      Fixedàa 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 a transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for the purposes of this title if a fixation of the work is being made simultaneously with its transmission.
3.      Phonorecordsàmaterial objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method no known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
b.      1976 Act overturned White Smith Publishing.
                                                              i.      White Smith Publishingà held that piano roll was NOT a copy of the musical composition embodied on it and therefore, did not qualify for copyright protection because there must be a printed record in intelligible notation readable to the eye.
1.      Public won
2.      Narrowing the scope of protection.
3.      Overruled by 1976 Act: perception by machine or device.
4.      Broader conception of what a copy can be.
                                                            ii.      NOW: copyrightability for sound recordings, computer programs, motion pictures, or other works embodied on objects that cannot be read without a machine or device.
                                                          iii.      Has to be fixed with or under the authority of the author (§ 101 definitions).
1.      Context matters (see e.g. taking notes during classà authorization implied)
c.       Fixation requirement does not require that the work be written down or recorded exactly as the eye perceives it.   Rather, all that is necessary is that the work is capable of being perceived with the aid of a machine or device.
                                                              i.      Midway Manufacturing Co. v. Artic International Co. à D argues that the items are not sufficiently fixed because symbols are changing and not sufficiently permanent. Court holds that, under § 101 definitions, symbols just have to be reproduced with the aid of a machine or device.
1.      Many aspects of game/display remain constant from game to game regardless of how the player operates the
2.      Work does not need to be perceived by human eye.
3.      Under discussion: but some courts have held that the temporary storage of copyrighted work in RAP reproduces—fixes—the work under the law of copyright. Permanence was satisfied.
                                                              i.      Oral musings without fixation.
                                                            ii.      BUT, state law can extend protection and protect spoken word.
                                                          iii.      See e.g. Ernest Hemingway case.
III.             ORIGINALITY
a.      General:
                                                              i.      Constitutional requirement (as determined by Feist decision)
                                                            ii.      Two requirements:
1.      Independent creation by the author
2.      Modest quantum of creativity/modicum of crea

ograph and transferred the rights to someone else. Author then takes the same model and poses her in a slightly different pose and names the picture something different than the first. By selling the copyrights, author cannot copy even his own initial photo because it is protected. The second photograph copies the expression. If you have a copyright, you are the only one who has the right to reproduce it—the new owner has all the rights and the photographer lost those right when he sold the copyright.
g.      If you define the idea very broadly then you have more leeway for the P; P will try to define broadly so that everything more specific is protected. Broad definition of idea is skeletal; more copyright protection. Narrow definition of idea is more specific and provides less copyright protection.
                                                              i.      Kaplanà2 pictures were taken from the same perspective. D argues that idea was copied. Summary judgment for defendant. 
h.      Nature and extent of copyright will vary depending on nature of originality.
                                                              i.      Mannion v. Coorsà P takes a picture for a magazine; D uses same angle. Court tries to find original expression to determine if it was copied. Court tries to create a test to determine if photograph is original, considering: rendition, timing, and subject.
1.      Characteristics used:
a.      Renditionà shot, shade, exposure, angle.
b.      Timingàright place, right time.
c.       Creationàcreated scene to be photographed.
2.      Court found that the idea does not include all of the similarities between the two photographs. Summary judgment for defendants DENIED. Jury found for plaintiff.
i.        Merger doctrineà if only a few ways of expressing an idea, the idea and expression merge and there is NO copyright protection.
                                                              i.      Herbert Rosenthal Jewelry Corp. v. Grossbardtà plaintiff had 19 white diamonds; defendant had 20. Plaintiff’s lawyer fell prey to the merger doctrine and said that there were limited ways of arranging the diamonds. Merger doctrine precluded recovery.
                                                            ii.      Morrissey v. Procter and Gambleà plaintiff was the copyright owner of a set of rules for promotional contests/sweepstakes. He alleged that defendant had copied rules verbatim. Court held that the plaintiff’s sweepstakes rule was unprotectible because expression was too closely tied with underlying idea.
V.                 GOVERNMENT WORKS.
a.      §105à Copyright protection under this title is not available for any work of the United States government, but the United States government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
                                                              i.      § 101 definitions:
1.      Work of the US government: a work prepared by an officer of employee of the United States Government as part of that person’s official duties.
2.      Work made for hire: work prepared by an employee within the scope of his or her employment.
                                                            ii.      Reason: need open access to government; need to know what the law is.
                                                          iii.       EXCEPTION: “value-added” materials (such as headnotes and summaries) are subject to private copyright protection.
                                                    iv.      Question: check to see if FEDERAL government employee or STATE government employee. State government employeeà privy to copyright protection.