Intellectual Property
University of North Dakota School of Law
Johnson, Erik

Copyright: Protection of literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, architectural work or a second recording from being reproduced w/o permission of copyright owner. Governed by 17 USC. Borne Through Fixation!
Ultimate Purpose: To stimulate the creation and dissemination of as many works of authorship as possible in order to benefit the public.
Statutory Definition: “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.
 
Requirements: 1) Fixed in a tangible form – fixed if, “when its embodiment in a copy or phonecord, 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.”; 2) originality – (1) the author must have engaged in some intellectual endeavor and not just copied, (2) that the work contain a minimal amount of creativity
§   Formalities: Also may be required; procedural requirements imposed on authors (these have now been relaxed): Notice of Copyright, Publication of Work, Registration of the work with the Copyright office, deposit of copy with Library of Congress.
§   Berne Convention eliminated notice; 1909 Act stated that registration was for 28, with optional 28; 1976 Act stated registration no longer determines duration
Duration: 70 years + life of author; 95 years from first publication in the case of anonymous books; works made for hire
 
What is Copyrightable? Literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works (so long as they are separable from the utilitarian aspects of the useful article); motion pictures and other audiovisual works; sound recordings; architectural works (only for works on or after 12/1/90).
§   Not Copyrightable: Ideas; Procedures; Processes; Systems; Methods of Operation; Concepts; Principles; Discoveries; work of the U.S. government
§   Baker: P makes a book-keeping system, writes in a book. D copies, P sues. Ct Rule: Copyright extends to the book, but not to the idea of the system itself.
§   Morrissey: P is copyright owner of a set of rules for a sales promotion contest of the “sweepstakes” type involving social security numbers. Ct. Rule: When the copyrightable subject matter is very narrow, so that “the topic necessarily requires” if not only form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.
Compilations: Compilations have to be original in order to be protectable. If the act of compiling was merely clerical in nature, with no creativity, originality is not satisfied.
§   Feist: P makes phone books for KS, is copied by D. Ct. Rule: Facts aren’t copyrightable, but compilations are if done creatively. To show infringement, have to show (1) ownership of valid copyright, (2) copying of constituent elements of work that are original.
Derivative Works: Copyright only extend to the original material contributed by the derivative author, not to the pre-existing material. To be protectable however, it must contain substantial, not merely trivial, variations from the original work on which it is based.
§   9th Circuit states that a derivative work may not be copyrighted if doing so will affect the copyright protection in the underlying work.
§   “Work based upon one or more preexisting works; such as a translation, musical arrangement, dramatization, fictionalization, motion picture, etc.” If infringement found, courts look to (1) D’s changes must be a substantial variation; (2) economic impact to owner
oStallone: P

y for Creative Non-Violence: Artist hired to make a sculpture, does so and P wanted to take on tour, D refused to give back. Ct Rule: If there is a work for hire, the employer or other person for whom the work was prepared is considered the author and owns the copyright, unless there is a written agreement to the contrary. However, if made by independent contractor, then not owned by employer (decided on Principal-Agent type way)
oAalmuhammed: P consulted by movie director for input, gives info and wants to own portions given. Ct. Rule: Joint work requires that each author make an independently copyrightable contribution to the disputed work – contribution here, but not authorship
§   Moral Rights: For visual art, the artist has the right: (1) to claim authorship in the work; (2) to prevent use of his name as the author of works not created by him; (3) to prevent use of his name as the author of his own work if that work has been distorted, mutilated, or otherwise modified so that the use would be prejudicial to his honor or reputation; (4) to prevent any intentional distortion, mutilation, or other modification of his work that would be prejudicial to his name or reputation; (5) to prevent the intentional or grossly negligent destruction of his work if the work is of recognized stature.
§   Exclusive Right of Reproduction: Copyright owner has the right to prevent others from making copies of the work.
First Sale Doctrine: Once a copyright holder has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she pleases.