COPYRIGHTS- ROTHCHILD, Fall 2016
1. Introduction – An Overview of Copyright Law
Two Views of Copyright:
Right wing – thinks creations are your property, so there is a natural right to complete ownership of your intellectual product
Rationale: The stronger the copyright, the more stuff will be produced because people will have incentive to produce more things because it is protected.
Left wing – copyright is an evil; it’s a monopoly
Rationale: Copyright makes it more expensive for people to get access to works of authorship
We need some level, but the current version is too overprotective and only helps the “Disneys” of the world.
Two Visions of Copyright:
Natural rights of the author, aka moral rights
Because you created something you have a natural right to ownership regardless of what the law says, and hope the laws will promote that.
Utilitarian considerations
We protect copyright because we want to give people an incentive to produce works of authorship
In the US the basis is almost always utilitarian
In Europe it’s natural right basis
Constitution’s Intellectual Property Clause:
“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;…”
What do you have to do to get a valid copyright?
Must be “fixed” 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
Must be original
used to have to put copyright notice/register for protection (before 1989)
Copyright gives you 5 Basic Rights:
Right to Reproduce (make copies)
Right to create Derivative Works
Right to Distribute Works
Right to Publicly Display Works
Right to Publicly Perform Works
2. Basic Hurdles of Copyright Protection:
Fixation, Originality, and Originality of Derivative Works
Three Requirements for Copyrightable Subject Matter
1) Fixed in a tangible medium of expression
2) It must be an “original work of authorship”
3) Copyright protection for a work that is both fixed and original will not extend to elements of the work that constitute ideas, procedures, and the like
FIXATION
1. THE BASIC REQUIREMENT
§102(a) – Original works of authorship are copyrightable if they are fixed
states that a work must be “fixed in any tangible medium of expression” to be protected by copyright.
Under §101, “a work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, [1] is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated, and [2] lasts for a period of more than transitory duration.” – as “fixed” by the court.
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.
Example: thus, live radio and TV 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”.
Fritz v. Arthur D. Little, Inc. (Dist. Ct. Mass. 1996) p. 34
Facts: Fritz gave a lecture, adding new things as he was teaching the material, and Kiefer wrote it down (adding it into his notes).
Issue: Whether there is a copyright in what is delivered orally?
Rule: works created extemporaneously and not fixed in a tangible medium of communication are not protectable (§101 definition of “fixed”)
An author may authorize another person to fix his work.
Holding: this was not actual copying on the part of Kiefer; he wrote down what Fritz spoke, which wasn’t embodied in any tangible medium. Fritz didn’t fix his notes, they were just spoken orally.
If Fritz had premade notes, then they would be fixed.
But Fritz had implicitly authorized people to fix his creation by letting them take notes during the lecture
If Fritz had delivered the material orally, then Kiefer takes notes, then afterwards Fritz writes it down:
Fritz would be the author, because it is his independent creation, and it was eventually fixed under this authority.
If Kiefer wrote it down before Fritz fixed it, Kiefer would not be infringing on copyright, but he would not be the owner/author
As soon as it’s fixed, the author (Fritz) owns copyright
**court incorrectly uses the independent creation doctrine (when two people come up with the same or substantially similar works on their own (independently).
Cartoon Network LLLP v. CSC Holdings, Inc. (2nd Cir. 2008) p. 39
Facts: Cablevision had a “remote storage DVR system”: customers without a DVR system in their homes cou
power
Holding: The law allows the gov't (in criminal version of this) to go after people making unauthorized fixations since the Constitution enables Congress to “secure rights.”
“Secure” = create, bestow, and allocate, rather than adding protection for separately created and existing rights.
The law creates a power in the gov't to protect the interests of the performers, but it does not grant the performer the right to exclude others from the performance.
3. FIXATION AND INTERACTIVE DEVICES
Williams v. Artic International (3rd Cir. 1982) p. 55
Facts: 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.
Pictures on the ROM chip; court looks at the fixation in the chips, rather than the constantly changing images on the screen. (the binary 1s and 0s in a stream are copyrightable).
Rule: a computer game is fixed in the ROM chip that contains its code, even though the images generated by the game code are transient
§ 102(a) (“either directly or with the aid of a machine or device”)
Holding: 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.
Fixation requirement is met whenever the work is sufficiently permanent to permit it to be reproduced or otherwise communicated for more than a transitory period
The memory device of the game satisfies the statutory requirement of a copy in which the work is fixed, so the
statute is satisfied
