Copyright Outline

 
Copyright; Rothchild; Winter 2014
 
INTRODUCTION/OVERVIEW
1.       Article I, Section 8, Clause 8:
a.       The Congress shall have Power . . . 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 . . .
2.       Why have copyright?
a.       Ideological: right wing: IP is property and you own it.  Stronger protection the better for incentive to create.  Left wing: protect it to the extent of societal benefits and there’s a cost to protection.  Necessary evil because it creates a monopoly and raises prices and lowers output.  Give as little as we can to accomplish our goals.  Creating a harm through copyright.
b.       Natural rights of the author, aka moral rights
                                                               i.      Because you created something you have a natural right to ownership regardless of what the law says, and you hope the laws will promote that
c.        Utilitarian considerations
a.       We protect copyright because we want to give people an incentive to produce works of authorship
b.       Nonrivalrous good- Unlike normal property, more than one person can use it at the same time.  Someone using it doesn’t prevent me from using it.  Society is better off when more people have access to a given piece of IP.  Doesn’t cost anything when someone else benefits. 
c.        Nonexcludable -hard to prevent other people from using it once it’s out. Because it’s nonrivalrous and nonexcludable, it’s a basic public good (like clean air, national defense), hard to exclude and charge people for them.  Public goods tend to be underproduced because people don’t pay for them.  Government steps in and pays.  Doesn’t create, but provides protection for them. 
A. What do you have to do for valid copyright?
1)       have to “fix” it in any tangible medium of expression: its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
2)       must be original
3)       used to have to put copyright notice/register for protection (before 1989)
4)       Copyright protection for a work that is both fixed and original will not extend to elements of the work that constitute ideas, facts, procedures, and the like.
5)       Employees don’t generally, get the right, employers do.
B. What rights do you get?
1)       Right to Reproduce (make copies)
2)       Right to create derivative works
3)       Right to distribute works
4)       Right to publicly display works
5)       Right to publicly perform works
FIXATION
1)       § 102(a) states that an original work of authorship must be “fixed in any tangible medium of expression” to be protected by copyright.
a)       Under §101, a work is “fixed” when it is in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
i)         Doesn’t matter what medium, all that is required is a fairly material permanent form so that it can be perceived with or without the aid of a machine.
(1)     Example: Thus, live radio and television broadcasts are embodied in a ''medium of expression…from which they can be perceived, reproduced, or otherwise communicated,'' but the projected sounds and images are ephemeral, and hence not ''fixed.''
2)       §102(a): Works of Authorship include
a)       literary works;
b)       musical works, including any accompanying works;
c)       dramatic works, including any accompanying music;
d)       pantomimes and choreographic works;
e)       pictorial, graphic, and sculptural works;
f)        motion pictures and other audiovisual works;
g)       sound recordings; and
h)       architectural works.
3)       “Copies”: material objects, other than phonorecords, in which a work is fixed (Cartoon Network) by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or through the aid of a machine or device. Includes the material object in which the work is first fixed.
4)       “Phonorecord”: material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
5)       Fritz v. Arthur D. Little – Fritz gave an oral lecture w/o notes. Kiefer added Fritz's lectures into his course based on notes he took.  
a)       works created extemporaneously and not fixed in a tangible medium of communication are not protectable ( § 101 definition of “fixed”)
i)        e.g., a speech that is delivered extemporaneously; a jazz or dance improvisation
ii)       works may be fixed by someone other than the author, if authorized.
b)       Ct misuses the independent creation doctrine
i)         Independent creation doctrine- theoretically possible for two authors to create the same work independently (ex: same riff by two different musicians)
c)       If Fritz gave authorization to Kiefer to take notes, it’s fixed giving Fritz the copyright.  If it’s not fixed, Kiefer doesn’t OWN the copyright, it’s just notes on uncopyrightable material.  Even if Fritz later writes it down, Kiefer doesn’t own it, but he’s not the owner.  If he gave permission for notes, it may be copyrighted, but has authority to use the notes.
6)       Cartoon Network – Cablevision had a “remote storage DVR system”: customers w/o a DVR system in their homes could record cable programming on hard drives at a remote location and could access recordings via RS-DVR software.  Copyrighted works are “embodied” in the buffer period
a)       Rule: 101 “fixed” – must be fixed for more than a transitory duration.  Must be sufficiently permanent.
i)         A work is fixed if the fixation is being made simultaneously with its transmission
b)       1.2 seconds in the buffer is too short to be “fixed.” 
7)       Broadcast: simultaneous fixation with live transmission is sufficient for fixation requirement.
a)       If there’s no transmission, there may be no fixation, if live performance.
8)       Section 1101 – it is illegal to fix a live musical performance without authorization for commercial purposes.  Criminal statute.
a)       U.S. v. Martignon – Martignon owned a record store in NYC. The gov alleged that he sold unauthorized recordings of live musical performances both at his store and via mail order. He was indicted for violating a federal criminal statute forbidding such activities
i)         the criminal version of § 1101 is constitutional:  enactment under Commerce Clause doesn’t conflict with Intellectual Property Clause power
b)       1101 – civil cause of action for a performer
c)       18 USC 2319A – criminal remedies to the government
9)       Computers/ROM
a)       Williams v. Arctic International – Williams (P) had three copyright registrations covering its Defender video game. One covered the computer program itself and the other two covered the audiovisual effects displayed during the game’s “attract” and “play” mode. D sells electronic components for video games, including a memory device with a program virtually identical to P’s.  D argues no infringement because P’s work fails to meet the fixation requirement
i)         Computer game is fixed in the ROM chip that contains its code. 
ii)       Features in a video game that repeat themselves over and over are sufficiently permanent to be considered more than transitory, the program that operates this function is “fixed” within the chips of the game. Even though the images are transitory, it’s the same as an image in film, its fixed in the read only chips.
(1)     Memory device in the computer game satisfies it being “fixed” because it is sufficiently permanent to permit it to be reproduced or otherwise communicated for more than a transitory period.
ORIGINALITY –  independent creation and minimal creativity
1)       Bleistein v. Donaldson Lithographing – One lithographing company against another.  Posters advertising for the circus.  One company copied the posters.  Circus trying to get a cheaper version.  Two things: not something that’s fine art, it’s advertisement.  The other, representation of things that exist already in life.
a)       Artistic merit is irrelevant:
i)        a poster created to advertise a circus has sufficient originality to be protectable under the Intellectual Property Clause, regardless of any judgments of the artistic merit of the work
(1)     “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 of the narrowest and most obvious limits.”
ii)       We do not want the government putting a stamp on what constitutes art.
b)       Copying from real life doesn’t defeat originality, since there is always something original in one’s personal reaction to nature
c)       It is not infringing to copy a public-domain item, even if somebody else has already copied it
i)          “Others are free to copy the original.  They are not free to copy the copy.”
ii)       Question of what is original. If you took a picture of Oscar Wilde similar to the one in the book, you would be infringing on a copyright because you are copying the original author’s original expression.
2)       Prunte v. Universal Msic Group – Prunte was a rapper that he submitted to Universal and another artist copied the themes and phrases from his works.  Sued Universal and some other well-known rappers.  His songs as a whole are certainly copyrightable.  Issue is the small pieces of the songs.
a)       Song titles and short phrases lack sufficient originality to be protectable
b)       Themes: Not original, used over and over again.  You also need certain themes for movies/songs.  E.g. some movies need car chases…if they were copyrighted, then we couldn't have any more of those movies.
i)    However, if someone copied a lot of unique elements of a particular car chase, that might be infringement.
c)        The theme itself is not protected, its just an idea (lack of originality and expression).
d)       Policy: If we grant people a monopoly on these short phrases, it takes too much stuff out of the available stock in creating new works. And it’s counterproductive; you would have to get a license, its inefficient, and bad public policy
3)       Some short phrases are creative, but too short to be copyrightable – “It’s a bird, it’s a plane”
4)       37 CFR 202.1(a): “the following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: (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.”
a)       There is danger in protecting phrases and themes—unconscious plagiarism, unnecessary barriers to expression
5)       Photography
a)       Mannion v. Coors Brewing Co – Photo taken of Kevin Garnett dressed in jewelry published in a magazine.  Coors wanted to start a marketing campaign.  Permission to use the picture for a comp board to recreate it.  Didn’t pick original photographer.  Photographer brings suit.
i)         Three element for photography originality: rendition, timing, creation of the subject. 
(1)     Rendition: Not what’s depicted, but how.  Lighting, filter, shade, exposure.  Factor for determining originality.  Basis for finding protectable originality, but only the photo is protectable, not the content.  Not the subject, but the way it’s being shot.  If somebody uses the same angles that has substantial similarity, potentially infringing.
(2)     Timing: Being the right place at the right time: scene of street in NY, artistic poses, strikingly original in timing because of what’s in the scene.  Bear eating the salmon.  Is being in the right place at the right time original?  Seems like good luck.  Decision of when to push the button is protectable.  When the sun is just right, or interes