Copyright Law Outline (Fall 2011) by degarmos


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									Copyright Outline

I) Fixation – must be fixed in a ‘tangible medium of expression’
     A) Pre-1909 Act
        1) White-Smith Piano Rolls: not fixed, must be a ‘tangible thing,’ that ‘appeals to the
            eye,’ not the ‘intellectual conception apart from the thing produced
            (a) 1909 Specifically Overrules
     B) Copy – for most works, the embodiment of the work is called a ‘copy.’
     C) Phonorecord – medium in which sounds (other than those accompanying visual media)
        are fixed
        1) MP3 Files
     D) More than just a ‘transitory’ duration
        1) IS NOT Buffer loading to transitory to be ‘fixed,’ only saved into RAM for seconds
            (a) But MAI – temporary embodiment on RAM can be fixation (writing song lyrics
                on computer)
        2) IS Midway (PACMAN) – game is ‘fixed’ when in ‘attract’ (demo) mode
            (a) 2 players making the same decisions would produce the same image, so the
                expression is capable of being reproduced
            (b) The AV elements are embodied in the computer chip and reproduced. Though not
                exact reproduction on each play, all of those images are embodied in the device
                and are capable of reproduction with the aid of machine or device
     E) Transmission with simultaneous fixation
        1) E.g., live broadcasts
        2) “work consisting of sounds, images, or both, being transmitted, is ‘fixed’ if the work
            is being made simultaneously with transmissition
     F) Writings – more than literary productions – all forms of writing, printing, engravings,
        etchings, etc.
        1) Anything by which the ideas in the mind of the author are given visible expression
II) Embodiment
     A) Perceivable directly or indirectly
III) Originality
     A) Short musical phrases – might be too short to have originality
     B) Novelty vs. Originality
        1) Bell
     C) Creativity Requirement
        1) USSC suggests a minimal, de minimus modicum of creativity (Feist)
        2) Aesthetic non-discrimination (Bleistein)
     D) Bridgeman Art Library – Digital Reproductions of Public Domain works
        1) Requires skill, resources, and labor, but CR doesn’t protect this
        2) When trying to create a literal copy, will lack originality
        3) Meshworks
IV) Authorship
     A) Author – the person to whom a work owes its origin
     B) Burrow-Giles – (Oscar Wilde) – photographer who takes a photo is the author because he
        arranges the subject and background, chooses the angle, lighting, timing etc.
     C) Musical Works
      1) NOT the sound recording, but the musical composition, the lyrics
      2) Authors: typically the songwriter/composer
          (a) Often joint work issues
   D) Sound Recordings
      1) Underlying work not always a song, e.g., if an audiobook
      2) Author:
          (a) Performers: vocalist’s own rendition of the musical work
          (b) Producers: creative arrangement, studio magic
          (c) Thorogood – just because you call yourself the ‘producer’ won’t give you any.
              Have to actually contribute
   E) Audiovisual Works/Motion Pictures
      1) Editors
      2) Performers contributing authorship potentially
      3) Many unresolved close questions, that are now solved by Work for Hire doctrine
V) Expression – CR protects expressions of the ideas, not the ideas themselves
   A) Baker v. Selden – a bookkeeping system is not protectable – System Expression
      1) Can’t monopolize use of a system
      2) His expression of the system in the book is protectable though
      3) No rights with regard to a useful system
      4) CR doesn’t apply to ‘discoveries, systems, methods, processes’
   B) Morrissey Merger Doctrine
      1) Where there is only one or but a few ways to express an idea, will not get protection
          because would be monopoly over the idea itself
          (a) ACt: said there was the minimal required creativity, but that was not the issue
      2) E.g., sweepstakes rules, only so many ways to say “one entry per person”
   C) Idea Expression Dichotomoy
      1) Deals with levels of abstraction
      2) Can’t copyright the “idea” of a play about feuding families of different religions
          (a) Characters – must be sufficiently well delineated to be more than just an abstract
          (b) Sam Spade 9th Cir– character must ‘constitute the story being told’
              (i) If only a mere ‘chessman’ in the story, then not copyrightable
              (ii) 2d Cir: is there sufficient detail to be a work of expression, and not just a
                   simple idea or “stock character?”
   D) Feist v. Rural – Facts are not copyrightable
      1) Could receive protection in the selection, ordering, or arrangement of facts though
          (a) CCC v. Maclean – Used car price predictions not “facts” like in Feist, but rather
              opinion and expression thereof
              (i) Soft Facts
                    Found to be copyrightable when “approximate statements of opinion
                        infused with author’s taste or evaluative judgment”
                         e.g., list of valuable coins with opinion laden values
              (ii) If infused with taste or opinion, likely will not find merger
              (iii)If advances from understanding of phenomena or the solution of a problem,
                   merger would likely be found
                       E.g., a system
            (b) West v. Mead Data Central (8th Cir)
                 (i) Pre-Feist
                 (ii) Wests’ star pagination copyrightable as selection/arrangement, found Lexis’
                      use of star pagination infringing
            (c) Bender v. West (2d Cir)
                 (i) Rejects Mead
                 (ii) Use of star pagination does not create an infringing copy
                 (iii)Merely listing the page number doesn’t infringe, it just permits the user to
                      make a copy if they want . . . fact that a user could do it doesn’t mean that
                      Bender or Lexis has done it
        2) Miller – ‘reasearch’ is not copyrightable, they are just your gathering of facts
            (a) Facts and research in factual/non-fiction work are not copyrightable, but your
                 expression of facts or of theories held out as fact are
    E) Characters
        1) 9th Cir Sam Spade – character must ‘constituted the story being told’
            (a) If only a mere ‘chessman’ in the story, then not copyrightable
        2) 2d Cir: There must be sufficient detail to be a work of expression, and not just a
            simple idea or “stock character”
            (a) Prof likes this better
    F) Scenes a Fair not copyrightable
        1) Things that are essential to certain genres
            (a) War Movies – epic battles with everyone shooting
            (b) Kung Fu Movies – way that karate matches are fought
            (c) Kinds of scenes that are very common or necessary if you are going to express a
                 particular type of idea
VI) National Origin Issues
    A) Unpublished works in §§ 102-03, while unpublished, are subject to protection regardless
        of nationality or domicile of the author
    B) Published Works - §§ 102-03 works, when published, are subject to protection if:
        1) On 1st publication date, one or more authors is a national or domiciliary of the US, or
            is a national or domiciliary of a treaty party, or is a stateless person
            (a) Treaty party: party to one
                 (i) Universal CR Convention
                 (ii) Geneva phonograms convention
                 (iii)Berne Convention
                 (iv) WTO Agreement
                 (v) WIPO Copyright Treaty
                 (vi) WIPO Performances and Phonograms Treaty
                 (vii) Any other CR treaty to which US is a party
            (b) Some works – location matters
                 (i) E.g., painting on side of building – where is the building located?
VII) Literary Works
    A) § 101 – works other than audiovisual works, expressed in words, numbers, or other
        1) Regardless of embodiment – in books, periodicals, phonorecords, film, tapes, disks
VIII) Dramatic Works, Choreography, Pantomime
    A) Dramatic Work
        1) Compendium II: Portrays a story by means of dialogue or acting, intended to be
    B) Pantomime
        1) Compendium II: Art of imitating or acting out situations, characters, or some other
            events with gestures and body movement. Need not tell a story.
    C) Choreographic Work
        1) Compendium II: Composition and arrangement of dance movements and patterns,
            usually intended to be accompanied by music . . . static and kinetic successions of
            bodily movement in certain rhythmic and spatial relationships. Need not tell story.
        2) CR office will not recognize exercise routines as choreography though
IX) Pictorial, graphic, & sculptural works
    A) Maps – Crability
        1) Authorship choices made that might receive thin CR
        2) ‘stuff that goes beyond the facts’ like a drawing of a town’s restaurant on the map,
            rather than just a dot
        3) Meshworks – reproductions of a work of art that add something might receive thin
X) Computer Programs
    A) Ideas expressed in ‘numerical symbols,’ embodied in tapes, disks, cards, chips, etc.
    B) First Generation cases
        1) Dealt with literal copying
        2) Apple v. Franklin
            (a) Operating Systems embodied in object code (101010), not perceivable by a person
            (b) Perceivable through the aid of a machine
            (c) Computer Chips/ROM – within definition of fixation
            (d) No protection for the method, but for the expression of the system, their particular
                program that expressed the system
                (i) Like the book in Selden, the system not protected, but the expression thereof
    C) Second Generation Cases
        1) Dealt with nonliteral copying, similarity in computer programs, typically from reverse
            engineering the object code
XI) Useful Articles
    A) Ask: is this a useful articleis there a purpose outside of expression or conveyance of
        1) If so are there any elements that can be copyrighted in the item?
            (a) Physical separability
                (i) Literal reading of statute would suggest this
            (b) Conceptual Separability
                (i) Legislative history suggests this works
                (ii) Can’t physically separate art on a shirt from the shirt itself
    B) Mazer v. Stein – Grecian Style Lamps
        1) D argued P had no protection because wasn’t ‘art,’ but was a lamp
   2) SCt: just because something has a utilitarian use, that usefulness will not
      automatically preclude CR protection
   3) § 101 – ‘works of artistic craftsmanship insofar as their form, but not their
      mechanical or utilitarian aspects are concerned ’
      (a) ‘features that can be identified separately from, and are capable of existing
           independently of, the utilitarian aspects of the article’
C) Expression – Utility Dichotomy
   1) What kind of separability do you need?
      (a) Nimmer: the Jaguar hood ornament is capable of existing from the car itself
   2) Doesn’t require ‘physical separabiltiy’ in the literal sense that you can rip it off and
      the utilitarian aspects would remain
   3) Conceptual Separabilitiy
      (a) Capable of existing independently
      (b) Courts usually follow conceptual separabiltiy
   4) Poe v. Missing Persons – possibly non functional swimsuit intended for display at an
      art show might CRable as a work of art
      (a) Was remanded
   5) Pivot Point
      (a) TCt – Goldstein Test
           (i) Can the P, G, or S feature stand on its own as a work of art traditionally
                conceived? And
           (ii) Would the useful article be equally useful without it?
                 Make-up models wouldn’t be as useful without eyes and their hair
      (b) ACt 7th Cir: Brandir Int’l Denicola Test – “Designer Intent Approach”
           (i) If the design elements were purely for aesthetic purposes, the protectable
           (ii) But if the design elements are guided and limited by the requirements to
                conform to the utility, then not protectable
           (iii)Here, design elements reflected judgment of author, thus CR
   6) Bonzali v. RSVP – cupid arrow spoons
      (a) Court uses designer judgment approach from Pivot and Brandir
           (i) ‘everything about their size and shape is designed to measure material
                accurately and to scoop effectively . . . the heart shape serves the purpose of
                scooping effectively’
           (ii) Belt Buckles – the ‘jewelry sculptural like elements’ didn’t serve the
                utilitarian function as a belt buckle
   7) Collezione Europa v. Hillsdale – Chair back designs
      (a) Ct applies Goldstein Test:
           (i) Sculptural elements could stand on their own as art traditionally conceived
           (ii) ‘art’ has a very low bar to avoid aesthetic nondiscrimination concerns
           (iii)Chair would be equally useful without sculpted elements
           (iv) Did not follow designer intent because P only registered the designs, not the
                entire chair
   8) Other Tests
      (a) Functionality: Are the P, G, or S elements necessary to the utilitarian function?
           (i) If not, then you have separable, protectable materials
                 Expensive designer belt buckle case
           (b) Aesthetic Appeal
               (i) Fact that element has aesthetic appeal is not enough
               (ii) Temporary Displacement: viewing the work (and other evidence) would
                    engender in the observer’s mind a separate non-utilitarian (ie artistic) concept
                    that can displace, at least temporarily, the utilitarian concept
                     Problem with aesthetic non-discrimination though
           (c) Usage Test: how is the article primarily used?
               (i) Primarily ornamental or primarily useful?
               (ii) Problem: if quantitative (most frequent use), might deny protection to works
                    because most people use as a useful article
                     If qualitative, gives not guidance to judge as to what ‘primary use’ is
           (d) Likelihood of Marketability
               (i) Would people be just as likely to buy if it wasn’t useful?
               (ii) Here, the Pivot Point heads would likely be unmarketable
                     So would the designer belt buckles
           (e) Casebook authors suggest that you could maybe handle useful article problems by
               applying idea/expression or merger or originality doctrines
       9) Architectural Works
           (a) Until 1990, treated as form of ‘useful article
           (b) AWCPA defines, covers:
               (i) Arch works created on or after 12/1/1990
               (ii) Works unconstructed on that date, but embodied in unpublished plans
                     If not constructed by 2003, then lapses
           (c) Unsettled issues
               (i) Some suggestion that functional elements of work not protected, controversial
               (ii) Seem to have a higher level of protection without going through the
                    separabiltiy analysis for useful articles that we normally would
           (d) § 120 Limitations
               (i) If in a public place, photographing it will not infringe
XII) Derivative Works - § 103
   A) Includes derivative works, compilations, and collective works
       1) Derivative Work: based upon one or more preexisting works, such as translation,
           musical arrangement, dramatization, fictionalization, motion picture version, sound
           recording, art reproduction, abridgement, condensation, or any other form in which a
           work may be recast, transformed, or adapted. A work consisting of editorial
           revisions, annotations, elaborations, or other modifications which, as a whole,
           represent an original work of authorship is a derivative work
       2) Compilation/Collective Work: such as periodical issue, anthology, or encyclopedia, in
           which a number of contributions, constituting separate and independent works in
           themselves, are assembled in a collective whole
           (a) If components are themselves copyrightable, then you’re dealing with a collected
               (i) E.g., Collection of short stories
           (b) If selection and arrangement of uncopyrightable stuff, then is a compilation
               (i) E.g., Arrangement of facts or data
      (c) 1909 Act: protected ‘standard directories,’ on a ‘sweat of the brow’ rationale to
          prevent others from freeriding on the one’s industrious compiling and research
          (i) Rejected in Feist
          (ii) 1976 Act clarified that compilations must be ‘original work of authorship as
               well,’ no rights to the underlying fats
   3) Collective Works
      (a) Copyright in each separation contribution to a collective work is distinct from
          copyright in the collective work as a whole, vests in author of the contribution
      (b) In the absence of an express transfer of rights, the owner of the copyright in the
          collective work is presumed to have acquired only the privilege of reproducing
          and distributing the contribution as part of that particular collective work, a
          revision of that work, or any later collective in the same series
      (c) Tasinsi – NY Times has several staff writers, whose articles are WFH, so NYT is
          the ‘author.’ They also take submissions from many freelance writers, though,
          and those are WFH, freelancers are the authors
          (i) Inclusion of NYT articles from the freelance writers in Lexis/Nexis databse
               was not a ‘revision’ of the collective work
                Inclusion on Lexis or on CD-ROMs not ‘revisions’ because being made
                  separately available apart from original Times edition.
      (d) Heinonline and Microphiche: Not infringing because they simply reproduce the
          entire collective work in its original context, which the CR holder of a collective
          work may license
B) CR in a derivative work does not extend to any part of the work in which material has
   been used unlawfully
   1) Stallone – fan script of new Rockie film not infringed on by Stallone because the fan
      used all of the characters and stuff without permission
      (a) Ct did not address the potentially protectable/original aspects that P added though,
          like the new villain
C) CR extends only to the material contributed by the author of such work, as distinguished
   from the preexisting material employed in the work
   1) The derivative work does not affect the protection or status of the preexisting material
      (a) Concerns about people tweaking something slightly to gain a whole other term of
D) Originality – generally, a pretty low standard
   1) Different courts have different standards
   2) Bell v. Catalda
      (a) Distinguishable, non-trivial variation
      (b) Mezzotint Blueboy reproductions – every engraver engraves the mezzotint
          slightly differently, these subtle differences are enough for originality
   3) Batlin
      (a) Substantial, non-trivial variation
      (b) Cheap plastic reproduction of public domain uncle sam pigg-bank – not enough
   4) Gracen
      (a) Images taken from Wizard of Oz for collector planes
      (b) Substantially different interpreted to be more than above cases
         (c) Suggested for a time in 7th Cir that you need more than just ‘non trivial’, but
              ‘substantially different’. People interpreted this for a while to be more demanidn
              than just ‘non trivial’, until Schrock
      5) Schrock
         (a) P hired to take pictures that he got to author of Thoms train sets, D continued to
              use the photos after they fired him
         (b) 7th Cir shits on the hightened standard of originality from Gracen
              (i) Originality: need only be distinguishable from underlying work
                    ‘sufficient non-trivial expressive variation
              (ii) P’s use of light and feel in the photos was sufficient
   E) Ricordi
      1) 1897 Long copyrights novel. 1900 Novelist Long granted playright Bellasco
         derivative work rights in play, CR in 1917. 1901 Bellasco also contracted to make
         opera version based on the play.
      2) Long’s first term of CR in novel expired in 1925. In 1932, Long, in new CR term,
         granted motion picture rights to Paramount (D). That same year, Bellasco’s trustee
         granted D rights in the play. Bellasco did not renew copyright in the play, became
         public domain in 1945.
      3) Held: Any motion picture rights Bellasco had in the novel expired with the first term
         in 1925. The new CR term is a “new estate,” clear of all rights or licenses under the
         original term of copyright.
      4) Held: D may use material from the novel because it was properly granted license to
         do so. It was also granted license to use the play, but CR expired in 1945, so such
         license was no longer exclusive at that point
         (a) But could not use any material original to the opera
      5) Held: Ricordi (P) only has protection in the elements of the opera that are original to
         the opera.
         (a) Because they no longer held license to the original novel, they may only use the
              opera itself (which was properly created with license), but may not make general
              use of the underlying novel’s story for a movie version of the opera because the
              story is licensed to D.
              (i) They could use material original to the play because that is at this point in
                   public domain, but only elements original to the play.
XIII) Works Made for Hire
   A) 1909 Act
      1) Author includes employer in the case of works made for hire
      2) Employer/Employee
         (a) Relationship not defined in statute
         (b) Presumption that CR vested in employer
              (i) Contrary agreement can rebut
              (ii) Other factors can rebut
                    Supervision & Control
                        presumed that the party at ‘whose instance and expense’ was made had
                           the right to supervise and control
      3) Commissioner/Independent Contractor
         (a) Instance and Expense
          (i) The ‘instance and expense’ really worked in favor of finding of WFH
      (b) Right to supervise and control
B) 1976 Act
   1) WFH: a work prepared by an employee within the scope of his or her employment; or
      (a) Employee:
          (i) Pre-CCNV Split Theories
                Right to control product
                   If party had right to control creation, made them employer
                   Eerily similar to 1909 act
                   Transformed otherwise independent contractor relationships to ee/er
                Actual control exercised over product
                Only formal, salaried employee is an ‘employee’
                Common law rules of agency for master-servant relationship
          (ii) CCNV
                CCNV had right to control, argued should be ee/er relationship
                Ct: looks at common law rules of agency, creates multi factor test
                Test:
                   Right to control
                   Skill required
                        Greater the skill required, less likely an employee
                   Location of Work
                        At employer’s premises, or artists own location?
                   Duration of relationship
                        Ee/er relationships tend to be longer term
                   Right to assign more projets
                        If ee, er can require you to do more projets
                   Discretion over when/how long to work
                        Independent contractors typi
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