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Intellectual Property
Villanova University School of Law
Risch, Michael V.

FALL 2012 
I. Copyright
·         Requirements:
o   Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, no known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid or device
§  A work is considered fixed in a tangible medium of expression if there has been an authorized embodiment in a copy or phonorecord and if that embodiment is sufficiently permanent or stable to permit the work to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
§  Fixed is defined in § 101
ú  By or under authority of the author
ú  Sufficiently stable
ú  More than transitory duration
§  Copy à material object in which a work is fixed
§  Phonorecord à material object in which a sound is fixed
§  Unfixed works may be protected under state common law
§  For a non-broadcast performance recorded by an audience member:
ú  Artist cannot control performance because fixation is not authorized
ú  Artist should record work prior to performance, but this is not possible for a truly improvisational work
§  For a broadcast performance with simultaneous recording by artist and audience member
ú  Treated as fixed by artist; audience recording is an infringing copy
§  For a nonbroadcast performance, but artist records, the audience can record, however, everyone else is locked out.  Fixes it for future people
o   Originality entails independent creation of a work reflecting a modicum of creativity
§  If someone is able to replicate a Keats poem in a clean room, without ever hearing or seeing a Keats poem, then there is no copyright infringement, as that is an independent creation
§  Copyright protection may extend only to those components of a work that are original to the author (See Feist Publications v. Rural Telephone Service)
ú  Facts do not own their originality to authorship (Feist)
ú  Original compilations of fact are copyrightable, as long as they exhibit some modicum of creativity (Feist)
·         “A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”
·         The requisite level of creativity is low
§  Facts and historical research are not copyrightable (See Miller v. Universal City Studios)
ú  Facts based on fiction, however, are protected (See e.g., Harry Potter Encyclopedia)
ú  If you sell something as if it is fact, then that something is not protected as long as the express language from the something is not taken (See e.g., Hindenberg book that was represented as fact, then those facts were later turned into a movie)
·         Subject Matter of Copyright
o   The use of include in § 102 makes clear that the listing is illustrative and not limitative, and that the eight categories do not necessarily exhaust the scope of original works of authorship
§  1. Literary Works
ú  Works other than audiovisual works, expressed in words, numbers or other verbal or numberical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards in which they are embodied
·         Also includes computer databases and computer programs
ú  Words and short phrases, such as names, titles, and slogans, are not subject to copyright
ú  Extends to a work’s structure, sequence and organization
ú  The scope of copyright protections is limited to expressive content and does not extend to underlying ideas
ú  For literary characters, the less developed the character, the less copyright protection they have
ú  Includes source code for computer software
§  2. Pictorial, Graphic, Sculptural Works
ú  Two dimensional and three dimensional works or fine, graphic and applied art, photos, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans
ú  Such works are not protectable to the extent that they have a utilitarian, rather than artistic, function
§  3. Archite

y the author of such work
ú  Derivative works along a chain of related works may well entail significant new creativity beyond the original copyrighted work
ú  We wish to protect new expression derived from works that are already in public domain
ú  Because derivative works often capture different markets, the copyright owner in the original work may wish to license to other the right to produce derivative works
ú  A compilation is a work formed by the collection and assembly of preexisting materials or od data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship
§  Three categories of unprotected ideas
ú  Animating concept behind a work.  See Baker v. Selden (account forms)
ú  The functional principles or solutions in the document
ú  The fundamental building blocks or creative expression
§  Blank Form Doctrine
ú  Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms, and the like, which are designed for recording information, and do not in themselves convey info are not protected.  37 CFR § 202(1)(c)
ú  The copyright of something does not confer on the author the exclusive right to make or use the process described in the copyrighted item (See Baker v. Selden)
§  Limiting Doctrines
ú  Idea Expression Dichotomy
·         In no case does copyright protection . . . extend to any idea, procedure, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work
·         Does not extend to any idea process, system or method