Select Page

West Virginia University School of Law
Tu, Shine Samuel

Professor Tu
Fall 2013
 17 U.S.C. § 1101
(a) grants to performers of live musical performances rights against:
(1) the unauthorized fixation of their performances and the reproduction of the unauthorized fixation in copies or phonorecords;
(2) the transmission or other communication to the public of the sounds, or sounds and images, of a live musical performance; and
(3) the distribution, sale, or rental of (or the offering to distribute, sell or rent) copies or phonorecords of the unauthorized fixation, wherever the unauthorized fixation occured.
These rights “shall apply to any act or acts that occur on or after the date of the Uruguay Round Amendments Act” (Dec 8, 1994) 17 U.S.C. § 1101(c).
Kiss Catalog v. Passport Int’l Prods. (C.D. Cal 2005)
court stated that fixation is a constitutional prerequisite to copyright protection but held that Congress had Commerce Clause power to protect unfixed performances, and that the exercise of this power did not conflict with the norms of the Copyright Clause
U.S. V. Martignon (2d Cir 2007)
Criminal aspect-controversial-confused….
§ 102 Subject Matter of Copyright: In General
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which is described, explained, illustrated, or embodied in such work.
House Report 1976
Copyright does not preclude others from using the ideas or information revealed by the author’s work. It pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts….
Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law.  Its purpose is to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged.
Baker v. Seldon 1879
I. Baker (D) won the case
II. Seldon complained that Baker violated his copyright on a blank accounting book for bookkeeping purposes, based on his own “peculiar” design on column arrangements.  Baker contended that this wasn’t copyrightable material
III. p. 101 Whether the exclusive property in a system of bookkeeping can be claimed under copyright by means of a book in which that system is explained.
difference between a copyright and a patent.  the functionality of the bookkeeping system cannot be copyrighted, only the way he individually explained the system in his book can be copyrighted.  therefore, the similarly arranged columns in Baker’s bookkeeping book was not an infringement on Seldon’s design. 
patent = functional
copyright = expression.  expression only has to be original to the artist, not novel.
Situation Management Systems, Inc. v. ASP Consulting LLC. (1st Cir 2009)
I. Situational Management Systems, Inc won its appeal of the district court’s ruling in favor of ASP Consulting.
II. ASP Consulting copied sections of SMS’s training manual on how to improve communication and negotiation within the workplace.  SMS’s sued ASP for copyright infringement on their training manual.  ASP claimed this was not copyrightable material.
III. Court decided that the ideas or the process on how to improve communication and negotiation was not copyrightable, however, the expression of these techniques in the training manual was copyrightable.  Court said that the district court did not give the manual appropriate value for the expression within it and ruled incorrectly against the (P).
Morrissey v. Procter and Gamble Co.  (1st Cir. 1967)
I. P&G (D) won after Morrissey (P) appealed the district court’s summary judgment on behalf of P&G
II. P&G copied, almost word for word, Morrissey’s contest rules (Rule 1) which included several paragraphs of instructions.
III. Can a generic list of instructions, like Rule 1, be copyrighted? This court ruled no, affirming the district court’s judgment in favor of the P.
Continental Casualty Co. v. Beardsley (2d Cir) 1958
I. Continental Casualty Co. won
II.  Beardsley developed a new kind of insurance covering lost securities.  He published a pamphlet explaining the insurance complete with forms.  Continental copied the forms but not the descriptions from the pamphlet, and Beardsley sued for copyright infringement.
III. The court concluded that this issue was different than that of Baker, because they determined that Beardsley DID have a copyright on his forms (but only with the EXACT RENDITION of his forms, this is called a “thin” copyright).  However, the court examined the scope of the copyright.  By forcing newcomers to the market to generate NEW terms for everything in a particular field would be ludicrous, so the court determined that using a similar form by Continental did not infringe on Beardsley’s copyright.
C. Facts and Compilations
§ 101 Definitions
A “compilation” is

omeone paint a copy of Gracen's picture and put onto plates to sell them.  Gracen sued for copying her painting
III. Court held that Gracen's painting lacked originality to sufficient a copyright on the painting before it's used on the plates.
Different originality standards for new works than for copied works.
Substitute DEVALUES the original work
Complement goes along with it
non original elements for compilations and derivative works
thin copyright on nonoriginal works like phone book compilations and statistics
thick copyright on characters, stories etc.
know what a derivative work is
know how to get a copyright on a derivative work
Nichols v. Universal Pictures Corp. (2d Cir. 1930)
L. Hand
“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly”
“but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.”
Warner Bros. Pictures v. Columbia Broadcasting System (9th Cir. 1954) cert denied
I. CBS won against Warner Bros. Summary judgment granted
II. Hammett, author of The Maltese Falcon had granted rights to Warner Bros. to make a film, starring Humphrey Bogart, about the Maltese Falcon story.  Hammett wrote a few stories afterwards, and then granted CBS rights to dramatize following stories about Sam Spade via radio BUT NOT to use the actual Maltese Falcon storyline.  Warner sued claiming they had purchased the rights with the granted rights to their movie in the 8500 purchase.  The courts held that the price could not have been that low had the character rights been sold to Warner Bros.  And Warner had not complained about the three stories published prior to CBS purchasing the rights from Hammett.  Therefore, the characters were still free to Hammett to use.