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University of South Carolina School of Law
Snow, Ned

Copyright Outline- Snow Fall 2014
Policies Behind Copyright
1)     Economic Incentive- To promote the progress of science and useful arts
a)     Rights encourage production
b)     Public Goods- 2 characteristics
i)       Non-rivalorous- use does not diminish potential use
ii)     Non-excludabliity- inability to withhold use.
c)      Expression is naturally a public good and markets naturally under-produce public goods
d)     Government recognizes a right in expression to allow the owner to exclude people so that the market does not under produce
2)     Fairness and Justice
a)     Copying is wrong/ Unfair
b)     Its stealing someone else’s ideas
3)     Lockian Labor Theory
a)     Labor/ Efforts give property rights
4)     Legislative Process
a)     Everything to do with money
b)     Lobbying
Copyright Subject Matter
1)     What gets Copyright protection?
a)     Copyright Act §102(a):
i)       Copyright protection subsists in original works of authorship, fixed in a tangible medium
ii)     Original Work:
(1)  Original: Independently created by the author, and possess minimal degree of creativity (Original and Novel are not the same thing)
(2)  Work: Literary, Musical, dramatic, pantomimes and Choreography, etc.
iii)   Copyright does not cover:
(1)  Ideas
(2)  Systems
(3)  Procedures
(4)  Processes
(5)  Methods of operation
(6)  Concepts
(7)  Principals
b)     Burrow Giles v. Sarony (1884)
i)       Facts: P sued D for D’s use of P’s picture of Oscar Wilde by copying the picture and distributing it.
ii)     Issue: Does Congress have authority to give copyright protection in a the photograph?
(1)  Is it a writing?: Broad definition of writing: “all forms. . . by which the ideas in the mind of the author are given visible expression.”
(a)  Author: He to whom anything owes its origin, originator, maker, one who completes a work of science or literature.
(2)  Is it original?: the photographs composition was creative
(a)  There was a sufficient degree of judgment used by the photographer in how to dress Oscar Wilds and how he posed.
(b)  An attempt at intellectual conception is sufficient.
c)      Bleistein v. Donaldson
i)       Facts: Circus buys an advertisement poster and takes it to copier to copy cheaper than original lithograph company. P who designed the poster sued D who copied the poster for copyright infringement.
ii)     Issue: Would ordinary art without artistic ability be copyrightable?
(1)  Does the fact that the picture is drawn from real life events effect its originality?
(a)  No, the copy of real life is the personal reaction of the indvidal upon nature. Personality always contains something unique. It expresses singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.
(2)  Copyright protection of prints extends only to “Pictorial Illustrations or works connected with the fine arts.”
(a)  Judges should not be the arbiters of the arts, therefore the definition must be interpreted broadly.
d)     Meshwerks v. Toyota Motor Sales
i)       Facts: P was a sub-contractor for a Toyota ad campaign. P made digital wire models of Toyota vehicles which were rendered by another company. P claims Toyota used their image in more adds then allowed.
ii)     Issue: Does Meshwerks have a copyright?
(1)  No because the design was all Toyota- Meshwerks just changed the medium. The next step digital company was the one to paint it and render it artistically.
(2)  Hardwork is not sufficient for a copyright, must be original
(3)  The fact that a work in a one medium has been copied from a  work into another medium does not render it any less a “copy”
(4)  Exact duplications are not copyrightable.
e)     Gracen v. Bradford Exchange
i)       Facts: Bradford had contest for Wizard of Oz Plate series contract. Gracen won the contest. She did not like the contest terms so Bradford hired Auckland to do the series. They gave Auckland, Gracen’s painting as a reference.
ii)     Issue: is there sufficient creativity in the derivative work for copyright?
iii)   Holding: No there is not because 2 derivative works could be copying the original and come out with very similar works so it would be difficult to tell if the derivative works require a higher level of creativity.
f)       Feist v. Rural- White pages case
i)       Facts: Feist Copied the names and phone numbers from another phone directory
ii)     Issue: Facts v. Compilation
(1)  Has Feist copied constituent elements of work that are original?
(a)  Selection?
(i)    There was a statute that told Rural what had to be included. Rural did not exercise originality in selection.
(b)  Arrangement?
(i)    There is no judgment in choosing to alphabetize b/c it is a common organization tool.
iii)   No copyright infringement
(1)  Facts

ved to be a non-copyrightable idea.
iv)   Drawing the line:
(1)  As the expression becomes more creative or unique, the idea underlying that expression will become more abstract, resulting in Strong Protection
(2)  As the expression becomes less creative (i.e. generic) , the idea underlying that expression becomes more specific, resulting in weaker protection.
o)     Kregos v. Associated Press
i)       Facts: Krego created a pitching form for baseball with 9 items in 3 categories
ii)     Issue: is the form copyrightable?
iii)   Holding: Very limited copyright protection
iv)   Merger: There are so few ways of expressing the idea that protecting the expression would protect the idea
v)     Blank Form Doctrine (usually no copyright):
(1)  Typical blank forms usually lack originality to merit copyright
(2)  Typical blank forms often merge idea and expression
p)     Apple Computer v. Franklin
i)       Facts; Franklin copied Apple’s operating system
ii)     Issues:
(1)  Are computer programs literary works?
(a)  Ct says: yes
(b)  Franklin claims-  object code is not literary
(i)    Ct. Says literary work is broader than Shakespeare
(ii)  Also its just like any other language in that it communicates
(2)  Is it original?
(a)  Ct. Says- yes. There is human judgment in organizing an operating system.
q)     Lotus v. Borland
i)       Facts: lotus has a spreadsheet program Borland copied the menu and submenu structures for organizing the program.
ii)     Issue: What Borland’s use an infringement on a copyrighted work?
iii)   Holding: No infringement
iv)   Policy: Preserve the convenience for the user
v)     Borland argued that the menus were a method of operations and Ct agrees and compares to buttons  on a VCR
vi)   Concurrence says Borland’s reasoning is purely competitive.
r)      Useful Article Doctrine
i)       Is the utilitarian aspect of the work conceptually separable from the aesthetic aspect?