COPYRIGHT LAW – HENNING – Summer 2010
I. INTRO
a. Copyright: the right of an author to control the reproduction of his intellectual creation.
i. A set of exclusive rights in literary, musical, choreographic, dramatic, and artistic works.
ii. Does not preclude others from using ideas or information revealed by the author’s work.
iii. Enables author to prevent others from reproducing his individual expression without his consent.
1. But anyone is free to create his own expression of the same concepts, or to make practical use of them, as long as he does not copy the author’s form of expression.
iv. Constitution: purpose of copyright is to foster the growth of learning and culture for the public welfare, and the grant of exclusive rights to authors for a limited time is a means to that end.
1. Benefit primary to the public not the author.
2. Secondary purpose: to give authors the reward due them for their contribution to society.
v. Balance of interests: costs of limiting access to works vs. benefits of providing incentives to create.
b. Statutory Authority
i. Constitution Intellectual Property Clause, Art. 1 Sec. 8 cl. 8 – Copyright clause/IP clause. Congress has power to enact a national copyright system.
1. “To promote the progress of…” “science and useful arts” – science goes to copyright protection and useful arts goes to patents
2. Limited times – duration
3. Authors and inventors (Idea/Expression Dichotomy)
a. Baker v. Seldon (102a)
i. Idea/expression dichotomy – what is not entitled to copyright protection
ii. Merger
iii. D’s argument is the idea does not fall within the subject matter of copyright. P argues that any form you come up with has to be similar to the accounting system in the book.
iv. Ideas and facts are not copyrightable, so no infringement if describing the bookkeeping system.
v. SC found two forms significantly different. But did not defer and say no copyright infringement. Instead discussed what is copyrightable subject matter. SC says he cannot have a copyright on the form because it should be patented but patents were not established yet. No copyright for a method or system, only for an expression. The copyright is on the expression in the book itself, not on the ideas in the expression.
vi. Holding: if you have an idea and it can only be expressed in one or few ways, there is merger between the idea and expression and it is not copyrightable. Other courts have said, if there is merger, there is a thin copyright – for things that are factual and only infringed by literal infringement. Merger Doctrine.
b. Patent v. Copyright
i. Patent:
1. 20 years from application
2. Useful, novel, nonobvious – lengthy examination
ii. Copyright:
1. Life + 70 years
2. Originality
3. Form and fee
4. Exclusive right – limited monopoly to exploit the copyright or patent
5. Writings and discoveries – writing is copyright and as in Feist, discovery is patent
a. Writing: Burrow-Giles Lithographic Co. v. Sarony (writings include photographs)
i. Original P was the photographer.
ii. Issue is whether a photo is a writing or a production of an author. Argues it is neither.
iii. SC says author = IP is intangible but gets visible expression in a photograph. For writing, the first copyright act was not limited to books, also includes maps and charts. Writing is broad. Also argue there weren’t photos at that time so why would it be in the Con.
iv. They can continue adding onto the list of copyrightable material.
v. Writing can be anything that you could put into some tangible form. Historically, Congress has viewed it expansively and did so from the outset.
vi. A photographer can be an author, because an idea is put into visible expression. SC also believes author is the originator of something, not a copier.
vii. Did the editor of the casebook needed to ask permission of the Oscar Wilde photo in the book? This is in the public domain because anything before 1923, it is in the public domain now.
b. Bleistein v. Donaldson Lithographing Co.
i. P who brought action for copyright infringement. P’s employees created the works. The SC mentions that, recognizing the concept of work-for-hire.
ii. Argument against copyright protection because it is only for applied to pictorial illustrations or those connected to the fine arts. Fine arts are connected to works.
iii. Pictorial illustrations are subject to copyright protection.
c. Feist – Compilation – selection, arrangement, and coordination of some data
i. SC talks about the originality requirement and facts
ii. Does the selection, arrangement, and coordination meet the originality requirement? Case by case basis.
ii. Title 17 of USC
1. 1790 Act – limited term (14 years) for books, maps, and charts, kept adding to the subject matter like plays, artwork. Changes the duration to longer
2. 1909 Act – extended copyright protection (first term of 28 years and renewal of 28 years) and term becomes with first publication with notice.
a. Many formalities making it easier to eliminate copyright protection, 28 year term with proper notice from date of publication (copyright symbol, name, date of publication), formulative renewal for 56 years
b. 1923 – first get copyright protection
3. 1976 Act – copyright upon fixation, life plus 50 years (now 70 years), notice was required and then eliminated in 1989.
a. (Effective Jan. 1, 1978) – still had copyright protection (93 years), copyright protection automatic upon fixation, 95 years if under copyright law of 1909.
4. 1998 – DMCA – creates liability, if you circumvent copy protection measures without authorization, can be liable under DMCA, also have safe harbors from copyright infringement for internet service providers
5. 1998 – Sonny Bono 20 year extension
c. Copyright Act:
i. Sections 101 (definitions), 102 (subject matter), 103 (compilations and derivative works), 106 (exclusive rights) (106a-Vara) , 107 (fair use), 109 (first sale doctrine), 110 (exemptions from liability) 110(5), 114 a,b,c (rights in sound recording), 115 (compulsory license in musical works), 203 (termination rights), 304 (duration of 1909 works and termination), 512 (safe harbor), 1201 (DMCA)
d. Cases (USSC), Congressional History, Federal Regulations, Treatises (Nimmer)
e. Most copyright infringement in 9th Cir, 7th Cir (Posner), 2nd Cir (publishing industry, music). Often circuits are in conflict and some disputes have been going on for years and SC hasn’t taken them on cert so there is a lot of forum shopping.
f. Purpose of Copyright Protection
i. To stimulate the creation and dissemination of as many works of authorship as possible in order to benefit the public. Balance of encouraging creativity and fostering competitive marketplace. Utilitarian view.
ii. Granting economic rights, incentive for works to be developed and marketed.
iii. Property right or is purpose for public good for information being out there.
iv. Berne Convention gave some moral rights
g. History
i. England: rights to publishers so they could censure what was published. Publishers went to the legislature a right to perpetuity to get all the rights to the work. Result is Statute of Ann – author had a rightto term of 14 years. Publishers continue to argue they should have the rights. Most playwrights borrowed from each other freely.
ii. United States: 1790, first copyright law.
h. Procedure
i. Get a copyright the first time automatically when something is fixed (videotaped). Not spontaneous, not if not written down. Until something is fixed, don’t have protection for it.
ii. Public gets the ability to alienate the physical copy (sell it).
iii. Owner gets a right to public performance, make derivative works, public display, distribute, perform (television broadcast)
iv. Copyright police (ascap), have to have a license to play music in a restaurant
v. Literal copyright with no fair use defense is likely to result in copyright infringement, but do not need literal copying, just substantially similar, can be liable for copyright infringement.
1. Exception: fair use, religious groups, education, or compulsory license (owner has no say-do not need permission from owner but have to pay royalty)
vi. Movie industry had no interest in copyright law. But they can be liable if based on original works. And thought there is copyright in movies. Then the music industry (sheet music).
1. Copyright maximalists: SC justices that think this is an absolute property right. It is to financially reward authors. Maximum protection. Ginsburg.
2. Copyright minimalists: focus on the Con to set up a nationalized system to promote progress of science and arts. Main interest is public interest of more knowledge. Shorter durations of copyrights so they can be used. Stevens and Breyer – minority.
II. SUBJECT MATTER
a.
The owner, not licensee, of a copy of a computer program can make or authorize the making of another copy without infringement if it is an essential step in the utilization of the computer program or for archival purposes
3. Notes
a. Works consisting of sounds, images, or both, that are transmitted, are fixed for the purpose of the statute
b. Other countries do NOT have fixation requirements, left up to individual signatories
i. TRIPS Compliance Resulted in Anti-Bootlegging Provisions prohibiting the fixation or transmission of a live musical performance without the consent of the performers, and prohibits reproduction/distribution of copies of an unauthorized fixation
ii. Originality
1. Modern Definition
a. Independently created by the author
b. Possesses a spark of creativity, no matter how crude, humble or obvious
i. Less creativity = thinner protection (to protect only the exact rendition)
ii. Can use a device to create a work
1. Visible expression of the mind of the author
2. Original mental conception fixed in a tangible medium of expression
iii. Sweat of the brow is insufficient
1. Though many judges find it persuasive
iv. “More than merely trivial”
1. 2nd Cir. 1999, changing the medium is insufficient amount of originality, especially when trying to reproduce the underlying work from the public domain with absolute fidelity
a. Slavish copying
2. 2nd Cir. 1951, even accidents resulting in substantial departures resulting in different representations in translating a work from one medium to another are copyrightable
a. But, the intent, unlike above, is that the new work look and feel differently
2. Holmes and non-discrimination
a. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside the narrowest and most obvious limits.”
iii. Idea/Expression Dichotomy (102(b))
1. Copyright does not extend to ideas, procedures, processes, systems, methods of operation, concept, principle, or discovery, no matter the form.
a. Expression is copyrightable, not ideas or fact
b. Can’t give monopoly in ideas
2. How to distinguish idea from expression
a. The animating concept behind the work
b. The functional principles or solutions described or embodied in the work
c. The fundamental building blocks of creative expression
3. Merger Doctrine – expression not protected if merged with idea so only 1 or very few ways of expressing an idea
a. When there is only one, or but a few, ways of expressing an idea, then the courts will find that the idea behind the work merges with its expression into one uncopyrightable whole
b. Differences between circuits
i. Some consider merger a defense to copyright infringement, 1st Cir.
ii. Some consider merger a bar to copyrightability
iii. Some forego merger, and say the particular expression is copyrightable, but protection is thin
c. Merger happened with Forms in Baker v. Selden
i. The ledger is an copyrightable whole because the single way to express the idea of the ledger merged the whole form into an uncopyrightable whole
ii. A peculiar arrangement of columns is enough for a copyright.
d. Did not happen with taxonomies in ADA
i. 7th Cir. There can be multiple original taxonomy systems of a field of knowledge, thus no merger
But see, 3rd Cir. Southco where parts numbers were “rigidly dictated by the rules of the [plaintiff’s taxonomy] system” (3rd
