Copyright
Rothchild
F 12
Get copy of Copyright Act – www.copyright.gov/title17/
Class 1 – “Fixation”
1. Difference between IP and real property?
1. IP is not necessarily tangible property; you can pick up a fixation of the copyright, but not the copyright itself
2. In order to get copyright on something you create
1. Fix it in tangible form
1. Until 1989, product had to be registered with copyright office; no longer necessary
2. Must be original product
2. Something like recipe cannot be copyrighted
1. It is functional, and a method of procedure – cannot be fixated
2. Can copyright a cookbook, with original directions/writing
3. Two visions of Copyright
1. Natural rights of the author, aka moral rights
2. Utilitarian considerations
4. Fritz v. Arthur D. Little, Inc., 944 F.Supp. 95 (1996)
1. Issue is basically that teacher of course made oral statements that defendant wrote down and used in his own courses
2. Court uses Copyright Act 17 USC 101, 102(a) to provide definition for “fixed” and “subject matter”, respectively
3. Independent creation doctrine
1. If two (or more) creators come up independently with substantially same product, they can both obtain a copyright
2. Can the doctrine apply in this scenario?
1. Fritz is aware people are taking notes, and has implicitly authorized the fixation of his words
3. What if Fritz writes down notes after presentation?
1. In that scenario, Fritz still holds copyright because he already had authority to allow the notes to be taken, therefore he implicitly holds the copright
5. Cartoon Network LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2008)
1. Question is whether information that the buffer stores is “transitory” (section 101) in nature, or constitutes a fixation
1. Court holds that information is indeed transitory, and is not sufficiently permanent to be perceived
6. Hypo – live, improvised performance recored by authorized assistant, but listener goes home and copies tune
1. Since listener did not used fixed form of performance, is it a violation of performer's copyright?
2. According to Act's definition of “transmit”, the rule of simultaneous fixation/transmission does not apply – the sounds were not “received beyond the place from which they [were] sent.”
7. United States v. Martignon, 492 F.3d 140 (2007)
1. Court references Act section 1101, and 18 USC 2319A
1. 1101 creates liability for fixing live musical performance without authorization from the musician
2. Case actually deals with constitutionality of criminal provision of section 513, codified at 18 USC 2319A – is it actually enacted under provision of the Copyright Clause?
1. Court determines that ?
8. Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 (1982)
Class 2
1. Bleistein v. Donaldson Lithographing Company, 188 US 239 (1903)
1. One company is suing another for recovery of penalties prescribed for infringements of copyrights; more specifically, the reproduction of the other company's copyrighted posters
1. “The copy is the personal reaction of an individual upon nature. … It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright unless there is a restriction in the words of the act.”
2. Having been drawn from real life does not deprive them of protection
3. “Others are free to copy the original. They are not free to copy the copy.”
2. Prunte v. Universal Music Group, Inc., 699 F.Supp.2d 15
1. Plaintiff sued over perceived similarities between his songs and those published by Universal
1. Most of claims regarded song titles and small lyrical phrases
1. Court held that the titles and short phrases were not part of the protectible copyrighted elements – e.g., “fire in the hole” or “ get it poppin'”
2. Why wouldn't themes, short phrases be protectible?
1. Something (theme) that is easily thought of by the general populace, or is not really an original idea (e.g. a car chase) is not protectible
2. Short phrases are not protectible as they are per se rarely original, and could easily stifle new works/creations of language (also 37 C.F.R. Sec 202.1(a) – “Words and short phrases such as names, titles and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents” are not subject to copyright
3. Mannion v. Coors Brewing Company, 377 F.Supp.2d 444 (2005)
1. Coors is alleged to have copied Mannion's photograph in its advertising
2. Is Mannion's photograph protectible, ie is it protected by copyright?
1. Three Factors of originality
1. Rendition
1. Angle of shot, light and shade, exposure, developing techniques, etc
2. Timing
1. Timing of the photograph, i.e. being in the right place at the right time
3. Creation of the Subject
1. The artist's creation of the subject of the photo, e.g. puppies on a park bench
3. Could vacation photos be protectible? Potentially – there is little impetus to copyright them, but
of plagiarism
1. The easy case: comprehensive literal similarity
2. Harder cases: fragmented literal similarity; comprehensive nonliteral similarity
Classes 4, 5 – out
Class 6
1. Ch. 4. Proving Infringement of the Reproduction Right
1. Arnstein v. Porter
1. Plaintiff must prove:
1. that defendant copied from plaintiff's copyrighted work
1. aka factual copying
2. that the copying…went so far as to constitute improper appropriation
1. aka illicit copying or substantial similarity
2. Proving Illicit Copying
1. Copying as a legal matter (illicit copying)
1. May consist of
1. literal copying
2. comprehensive nonliteral similarity
3. fragmented literal similarity
2. No dissection or expert testimony permissible (except on likely audience reaction)
1. The similarity is a legal conclusion; experts can only testify as to facts
3. Proving factual copying
1. Copying as a factual matter
1. May be proven
1. directly
2. via access + probative similarity
3. striking similarity
2. Analysis and expert testimony permissible
2. Jones v. Blige
1. Plaintiff alleged infringement based on fact that his song was at corporation (Universal) at the same time that Blige's song was produced
1. Did not allege enough facts to that effect
3. Bright Tunes Music Corp. v. Harrisongs Music, Ltd.
1. Two disparate motifs are found in both of the songs, similar enough to suggest infringement
4. Price v. Fox Entertainment
1. Court's focus on differences is problematic, when faced with focus on similarities
2. Improper Appropriation
1. Gottlieb Development LLC v Paramount Pictures Corp.
1. Gottlieb is suing Paramount because Paramount used image of Gottlieb's pinball machine in film without permission
2. Argument turns on whether portrayal was de minimis and so trivial that copying is not actionable
1. Undisputed as a factual matter that Paramount copied pinball machine, as an actual one does appear in the film
