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University of South Carolina School of Law
Snow, Ned

Copyright Snow Fall 2017
CHAPTER 1: Policies Behind Copyright: (LEPF)
Lockian Labor Theory
Labor/ Efforts give property rights
“Copyright exists because you created your expression”
Economic Incentive
By giving authors an exclusive right in their expression, authors will create more and better expression to realize economic profit.
However, if the thing is already created for another reason, then the incentive to copyright is not needed to encourage the creation of the thing.
Expression is naturally a public good and markets naturally under-produce public goods
Public Goods- 2 characteristics
Non-rivalorous- use does not diminish potential use
Non-excludabliity- inability to withhold use.
Government recognizes a right in expression to allow the owner to exclude people so that the market does not under produce.
The right to prevent others from copying your work will give you reason to create that work.
“The court cites to the Economic incentive theory as to recognize the copyright and the subject matter being incentivized is creativity”
Manifestation of the author’s personality, and copyright serves to protect and to further that manifestation.
Fairness and Morality
Copying is wrong/ Unfair
Its stealing someone else’s ideas
Ultimately copyright exists to fulfill a purpose
Constitution: To promote the progress of science and useful arts (incentivize behavior)
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.
Case law: creativity
Legislators: as a means to further economic ends, i.e., commercial activity
CHAPTER 2: Requirements for Protection
What must an author do to gain Copyright protection?
Create an original thought in a tangible medium of expression. Thus, originality and fixation.
Originality of thought and fixation of thought.
Originality: not copied and at least minimally creative.
Where do these requirements come from? The Constitution Article I, Section 8, Clause 8 and Copyright Act §102. Constitution doesn’t explicitly state “originality,” but the Supreme Court has held that it is a constitutional requirement.
Constitutional Interpretation
Burrow Giles (Original D) v. Sarony (P) (1884)
Facts: P sued D for D’s use of P’s picture of Oscar Wilde by copying the picture and distributing it. P posed Wilde, selected costume, various accessories, and arranged light, suggesting and evoking the desired expression.
Issue: Does Congress have authority to give copyright protection in a the photograph? Yes.
Is it a writing? Yes
Broad definition of writing: A writing is any form by which the ideas in the mind of the author are given visible expression.
Author: An author is he to whom anything owes its origin, originator, maker, one who completes a work of science or literature.
Must be representatives of original intellectual conception of the author.
Is it original? Original work of art, the product of plaintiff’s intellectual invention.
There was a sufficient degree of judgment used by the photographer in how to dress Oscar Wilde and how he posed.
An attempt at intellectual conception is sufficient.
A mechanical reproduction of a real-life subject is original.
Questions left open and answered in Bleistein:
What is the minimum level of creativity that would satisfy the originality requirement?
The bar for originality is very low. It expresses singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.
Would an ordinary production of a photograph satisfy originality?
Yes, a picture is nonetheless a picture, and nonetheless a subject of copyright.
Bleistein v. Donaldson
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.
Issue: Would ordinary art without artistic ability be copyrightable? Yes.
Does the fact that the picture is drawn from real life events affect its originality?
No, the ballet is as legitimate a subject for illustration as any other.
The copy of real life is the personal reaction of the individual 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.
The fact that it is an advertisement does not

xposure, effects achieved by filters, and developing techniques.
The effect produced by the lens and filters made the photograph original, not the lens and filter selection themselves.
The shutter speed of catching car lights is not copyrightable but the effect of the stretched lights is.
Timing: weak
Limited copyright protection because of the principle that a copyrighted photograph confers no rights over the subject matter.
We don't want to encourage the creative timing we want to encourage a creative subject matter
Subject matter: strong
Creation of the subject is more salient.
This is the most valuable part we want to incentivize-human thought-subject matter.
Insofar as a photograph is original in the rendition or timing, copyright protects the image but does not prevent others from photographing the same object or scene. By contrast, to the extent that a photograph is original in creation of the subject, copyright extends also to that subject. Thus, an artist who arranges and then photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium.
P’s angle and distinctive lighting strengthen that aspect of the photograph's originality. His composition-posing man against sky evidences originality in the creation of the subject.
Garnett’s face, torso, and hands are not original to P, and
Existence of a cloudy sky is not original
Thus, P may not prevent others from creating photographic portraits of Garnett or using a cloudy sky as a backdrop.
Coors’s argument is that KG decided what to wear.
Court says Manion gave sufficient level of specificity. P doesn’t have to be responsible for every detail.
Also the attire cannot be viewed in isolation. The whole image is copyrighted and not just a few individual components.