Copyright Outline I. Requirements for Copyright Protection A. Basics §102

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Copyright Outline
I. Requirements for Copyright Protection
A. Basics

1. §102

a. Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

(i) Categories (list not exclusive: "works of authorship include")

1. Literary works

2. Musical works, including words

3. Dramatic works, including music

4. Pantomimes and choreography

5. Pictorial, graphic, sculptural works (PGS)

6. Motion pictures and a/v works

7. Sound recordings

8. Architectural works (added in 1990)

(ii) Expansive view of "science" and "writings" as provided for in (1,8,8)

1. Generally, the modern view is that inventors work in the "useful arts" and they get patents, and authors deal in the realm of "science" and they get copyrights

i) "Science" at the time of framing means knowledge

ii) "Useful arts" at the time of framing meant inventions and practical stuff

2. Using a mechanical device to capture external reality - is that "authorship"? Where is the originality?

i) To be an author you must contribute creative work

ii) What does this have to do with photographs?

a) It sheds light on what the founders meant by the word "writings" - members of the first Congress had themselves been around only a decade earlier

b) Insight into the word "writings" would be a valuable insight - didn't just include text (novels, biographies, histories, poetry, etc.) - they also thought it included maps and charts

1) Why include "maps and charts"? Incentivizes exploration because it incentivizes mapmaking and chart-making

iii) Since they thought that, if nothing else we walk away from the first copyright statute with the notion that this is not limited to just words - it is expansive enough to include other stuff

(iii) Fixed: when its embodiment in a copy or phonorecord, by or under authority of author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration

1. Copy: material objects, other than phonorecords, in which a work is first fixed and from which it can be perceived, reproduced, or otherwise communicated with or without aid of a machine

2. Phonorecord: material object in which sounds are fixed (like an audio CD)

b. In no case does cprt protection for an original work of authorship extend toany idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of form

2. Exclusive Monopoly

a. A copyright is a legally conferred monopoly

(i) Gives the owner the exclusive right to make copies of and otherwise economically exploit a relevant category of material

(ii) You and only you may duplicate this work and otherwise economically exploit it

b. In the real world

(i) Clients (if they are creative individuals) are interested in protection, not particularly copyright protection

(ii) They just want to prevent someone from ripping them off and are usually indifferent about the modes of protection

(iii) By and large, we must remember that just because we determine that something is not copyrightable does not mean that it is unprotected (it may get a TM or a patent or something else that protects it)

c. But . . . some of the most revered and timeless creations in culture and art are those creations that were created in a world without copyright:

(i) Characteristics of pre-cprt period

1. Patronage System - for those persons who chose an artistic or literary career, those persons "knew where their next meal was coming from" (today, government gives grant money)

2. Copying technology was extremely primitive or nonexistent

3. Economic reward requires artists to capture the benefit of their creations - in earlier times, in order to capture the benefit, Mozart had to play the piano himself

(ii) With no patronage system and improved copy technology, need to create a system of rights to enable artists to make their creations

1. Otherwise, artists would have to choose other careers

2. You create an exclusive right which motivates people to engage in a certain activity

3. If people like your creation, the money will flow to you because no one else will be able to make copies of it; if they do, we will give you legal recourse

3. Downsides of Exclusivity

a. Most artistic enterprise is synergistic or builds on things that have existed before

(i) Given that it is necessary to rely on what came before, an overly tight system of exclusivity would hinder creativity

(ii) Artists might be afraid to be sued for copyright infringement

b. Monopolies are not economically inefficient

(i) They drive up the price

(ii) A monopolist creates artificial scarcity, which is how you sustain the higher price

(iii) Suppressing output and raising the price - makes the work more expensive or (for some) inaccessible

c. Censorship issues with copyright?

(i) Overly tight exclusivity is potentially at war with first amendment values

(ii) To the extent that we cannot have criticisms of art and literature without quoting art and literature, overly exclusive laws would stifle 1A rights

4. Questions

a. Have we got the balance right?

(i) Have we calibrated the statute and its exclusivity along with its associated exceptions so as to create sufficient incentive to generate creativity while leaving enough breathing space to not get some of the negatives?

b. Has the law kept up with technological change?

(i) As we get new copying technologies, can the law keep up?

(ii) But is it reacting enough/too much/in the right way/shutting the barn door after the cow escapes?

B. Fixation

1. See (I)(A)(1)(a)(ii) for definition of fixed

2. Live performance scenarios

a. Live performance of music being simultaneously taped by the performer?

(i) Live performance is not fixed and not copyrightable

(ii) If the performer's assistant records the performance, that recording is copyrighted

b. What if a spectator simultaneously records the performance?

(i) The statute can read that the simultaneous recording is not infringing, and is also protected

c. A work is fixed if its fixation is simultaneous with its transmission

(i) Transmission means communication received beyond the place where they are sent

(ii) This applies to sporting events, etc.

(iii) Where it is not transmitted (night club scenario) there is a situation where it is not considered fixed

1. If it is piped into other rooms, it is a closer call

d. §1101 - anti-bootlegging provision

(i) Special rule that says that live music performances receive special protection

(ii) §1101(a)(1): cannot fix the sounds of a live musical performance in a copy or phonorecord without authorization of author, or to reproduce copies

(iii) §1101(a)(2): cannot transmit or communicate to public sounds or images of live musical performance

(iv) §1101(a)(3): to distribute or sell or rent or offer or traffic in any copy or phonorecord described in (a)(1)

(v) Argument against §1101 (Constitutional): (1); and (2)

1. Does not fix the rights for a limited period of time, which may violate IP Clause

2. Constitution refers to "writings of an author" - is a musical performance that is not fixed a Constitutional "writing"?

3. Fixation in a Digital Medium

a. E.g.

(i) Poet writes a poem; not saved on hard drive or automatically backed up; someone else comes into the room and memorizes the poem; computer crashes - no copy; other person prints and sells poem

(ii) Is this copyright infringement?

1. This was, though, fixed in the RAM - that's why it was continued to be displayed on the screen - this is the modern equivalent of the sandcastle or ice sculpture; that appears to be the modern consensus - it was fixed and, so, protected

b. Consensus is that a work can be fixed when it is in transient computer memory

(i) Websites?

1. Every time you view a website, you make a copy of it; is that an infringement?

C. Originality

1. Broad idea with a fairly low bar or threshold

2. Definition

a. Originality is not defined in the statute

b. Settled meaning in the case law -- 2 Components

(i) Work must be made from scratch, not copied from another

1. If the rule were otherwise, we would be subtracting things from the public domain - you could retype the plays of Shakespeare and then assert a copyright

2. Also, note, that originality is not the same as novelty; see parallel, independent creation; ;

i) this is different from patent law, which requires novelty (not existent in prior art or in the public domain)

ii) In patent world, you can do a reasonably limited prior art search

a) Searching all poems or all books would be a lot harder, and so we do not require novelty; also the nature of art is that it builds on what came before

(ii) Creativity

1. "Original" = work must be creative

2. Extremely pedestrian or banal or unremarkable material is not eligible for copyright protection

3. Logic of the creativity requirement is it is too hard to come up with an original way to express something very regular like "open here"

4. Prevents the possibility of petty harassment (e.g., copyrighting a square)

5. However, the requirement of creativity is not a high hurdle

i) Work does not have to be particularly good, just possess a "modicum of creativity"

ii) No sweat-of-the-brow requirement anymore

c. Bleistein (Holmes): "others are free to copy the original, but are not free to copy the copy"

(i) Others are free to draw or photograph the same people that someone else has drawn or photographed (others are free to draw the Sturk family)

(ii) "Original" in that statement means the original object in the real world

(iii) Just because you take a picture of the Eiffel Tower does not mean that I am prohibited from taking another picture of the Tower

d. Facts

(i) Facts are not original - they don't owe their origin to the person who discloses them

(ii) Facts are discovered, not created

(iii) Facts are building blocks

1. They are the raw materials with which others will advance our knowledge and understanding

2. To create a monopoly to prevent others from using facts is not what copyright is about

e. Scenes-a-faire doctrine

(i) Just as facts are not sufficiently original and don't owe their origin to an author, there are also certain "stock" scenes or situations that are customary in given subject matter and are not original either

3. Cases

a. Magic Marketing v. Mailing Services of Pittsburgh

W.D. Pa. 1986

(i) Facts: Magic Market discovered someone was reproducing its solicitation envelopes without their permission

(ii) Holding: solid black stripes are not cprtable because they fail to embody a minimal level of creativity; printing within the stripe is nothing more than distinctive typeface, which is not protected

1. No issue about originality in the first sense, that it is not made from scratch

2. The originality issue here is creativity

(iii) Notes

1. Tin Pan Apple Inc. v. Miller Brewing Co.: words "Hugga-Hugga" and "Brr" in a rap song do notlack sufficient creativity to merit cprt

2. Santrayll v. Burrell: distinctive rhythmic repetition of phrase "uh oh" held sufficiently original to survive summ.j. motion

b. Burrow-Giles Lithographic Co. v. Sarony


(i) Facts: plaintiff was a celebrated studio photographer of his day; decides to photograph Oscar Wilde; defendant made lithos

(ii) Holding: Sarony chose the angle, set the mise-en-scene, and that is what is creative

(iii) What about vacation snapshots? Are they copyrightable?

1. There is some "authorial" judgment regarding what to photograph

2. There is a choice of where to stand, how to frame, what to include, camera settings

c. Bleistein v. Donaldson Lithographic Co.


(i) Facts: plaintiff was the proprietor of a circus; made arrangements to have promotional posters; defendant made unauthorized copies of the posters; defendant was not doing this to sell the posters as art, but was involved with promoting the circus; plaintiff sued the printer saying that printer made unauthorized copies of the posters

(ii) Holding: Principle of Aesthetic Nondiscrimination

1. "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which the author spoke . . . . At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value-it would be bold to say that they have not an aesthetic and educational value-and the taste of any public is not to be treated with contempt."

2. Progress of science should not be judged by a high bar - it can be very pedestrian work

i) However, Holmes does not think that this particular advertisement is pedestrian

ii) Nevertheless, pedestrian work is meritorious of protection!!!

(iii) Operative Statute at the Time

1. Addressed this kind of work: "illustrations or works connected with the fine arts"

2. Is this poster (an advertisement) actually connected to the fine arts?

3. In this particular instance, Holmes dismisses that argument

i) Holmes says that the statute means "illustrations" __FULL STOP__ or "works connected with the fine arts"

ii) Therefore, "connected with the fine arts" does not modify "illustrations"

iii) Holmes also makes a more policy-oriented argument

a) Even thought this is more for the commoner than for fine art, an illustration does not have to have any type of higher meaning

b) He interprets the word "fine arts" to mean not "fancy stuff" but just anything that appeals

D. Idea/Expression Dichotomy (Merger Doctrine)


a. This principle is now codified in §102(b)

b. Justifications

(i) Ideas are building blocks

(ii) Things listed in §102(b) can/should acquire patent protection

1. Why not have them protectable under both patent and cprt?

i) Patentable things must be novel, non-obvious, and useful

ii) If the ideas inherent in a copyrighted book were forbidden to be used by others, you would have an end-run around the patent system

iii) In that sense, you would subvert the acquisition component of the patent system

iv) Also cprts last longer than patents and that would stymie progress

(iii) Ideas are in short supply

c. Copyrightable subject matter is designed to communicate information or aesthetic pleasure -- it is not designed for things that are to be utilized in an instrumental way

(i) Exception: computer software is cprtable subject-matter even though it is utilitarian in nature and resembles a blank form

1. E.g., Microsoft Word is a blank form and is utilitarian, but the underlying code is protected by cprt

2. But . . . cprt is not limited to verbatim copying because such a rule would create a loophole

3. "Thin" Copyright

a. Sweepstakes rules example - copyright, if any, would be thin

b. What we mean is that copyright does not merely protect you against verbatim copying

(i) Not protected: copying that is a paraphrase or copying that rips off organizational structure

(ii) When the thing copyrighted possesses only a modicum of creativity, the corresponding copyright will be similarly narrow

(iii) Even a modest paraphrase will escape condemnation

4. Cases

a. Baker v. Selden


(i) Facts: Selden devised a new accounting system with new forms and published them in a book; Baker makes and uses account books based substantially on the same system (maybe he took the forms and reprinted them; or maybe he published a competing textbook)

(ii) No real argument that this is not original or creative: Selden developed the system and forms from scratch and involved a modicum of creativity

(iii) Holding: the cprt of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book; the plan or system itself is an idea, which is not cprtable

(iv) Alternative way of thinking about the case - in effect, what we are dealing with in the Selden booklet was a book that is practical in nature (a.k.a., "utilitarian")

1. Court seems to say in addition to idea versus expression is that if a work is utilitarian, if it teaches use how to do something (how to practice an art), then others are free to engage in that utilitarian activity

2. Practice of the art is not infringing

3. In the world, you can actually practice the utilitarian art, not just utilize in writing the idea

4. Where there is a work that describes how to use a system, and parts of the work are necessary to use the system, then it is okay to use the parts of the work for the use of the system

i) In other words - if the only way to get at the utilitarian aspects of the system disclosed (i.e., practice the art) is to use the expression in the work, then that expression is dedicated to the public

ii) We are going to let the freedom of idea principle trump the protection of expression principle - this holds even if the differences in the system are trivial

b. Morrissey v. Procter & Gamble Co.

CA1 1967

(i) Facts: Morrissey has written a set of sweepstakes instructions; P&G came up with a virtually identical set of sweepstakes instructions

(ii) Holding: some ideas can only be expressed in one or a limited number of ways (MERGER DOCTRINE) - when an idea merges with the expression, there is no protection for the merged idea or expression

(iii) We are so hostile to the proposition that we would give people monopolies in ideas under cprt law that we shrink from that thru the merger doctrine

(iv) In effect, Morrissey wanted to protect his invention (the SSN sweepstakes) by using the copyright regime

(v) However, the utilitarian system (the art) is not capable of being monopolized under copyright law

(vi) If the only way to practice the art is to use the words, then the words are not copyrightable!!!

c. Bibbero Systems, Inc. v. Colwell Systems, Inc.

CA9 1990

(i) Facts: Bibbero created a superbill for MDs to use to bill patients; Colwell featured a similar superbill in its catalog, albeit with different typefaces, etc.

(ii) Holding: blank forms are not protected by copyright

1. No protection for ideas

2. No protection for utilitarian things

3. No protection for the art that uses the utilitarian idea

4. Basically, there is no expression in a blank form
II. Types of Copyrighted Works

Ideas, utilitarian works, and facts are the building blocks of future creativity - taking them away would limit progress and be contrary to the Constitution
A. Compilations, Databases, Maps

1. Definition

a. §101 (Compilation)

(i) Work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship; term includes collective works

b. Compilations and derivative works do not have from-scratch creation

(i) They are second generation creations - they build upon preexisting material

2. Permission needed for cprted material incorporated

a. If you wish to put together an anthology of material still protected by copyright, cannot do that unless you get permission

b. Caveats

(i) The existence of independent cprt protection for a compilation does not in any give you an automatic license to use protected material

(ii) Do not receive cprt for already-cprted work

3. No "sweat of the brow" doctrine

a. Goes beyond the purpose of copyright law

b. Whether you work two hours or two years on something, you still get the same protection, as long as it is original

c. Protection cannot depend on how hard you work

d. E.U. Different

(i) IN E.U., almanac compilations (a.k.a., databases) are protected for the structure of the database based on a sweat of the brow theory

(ii) If you have invested a sufficient amount of money, if you have sweat a lot, then you receive database protection

4. Cases

a. Feist Publications, Inc. v. Rural Telephone Service


(i) Facts: issue was the copyrightability of a white pages telephone book

(ii) Holding: facts are not cprtable, compilations generally are where there is a modicum of originality, and cprt in a factual compilation is thin -- a subsequent compiler is free to use the facts contained to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement

(iii) The originality requirement is not particularly stringent

1. A compiler may settled upon a selection or arrangement that others have used

2. Novelty is not required

3. Originality only requires that the author make the selection or arrangement independently and that it display some minimum level of creativity

(iv) Cprt in a compilation protects only the author's original contributions--not the facts or information conveyed

(v) To get cprt in a compilations, the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever

(vi) Rural's selection of listings lacks the modicum of creativity necessary to transform mere selection into cprtable expression

1. Telephone directories are always alphabetical - there is no originality in the arrangement

2. And selection is not original either in telephone directories - all subscribers go in the directory

3. There is some selection in what data to include, but Court thinks that is not enough

(vii) Even if there is no copyright on phone books, Feist probably thought it was cheaper to seek licenses from telephone service providers instead of paying for protracted litigation

1. This has a result of creating an expectation such that future companies like Feist are afraid to proceed without obtaining licenses, even if there is no copyright protection in the particular area

b. Nash v. CBS

CA7 1990

(i) Facts: "Simon & Simon" episode cribbed from Nash's books attempting to debunk the fate of John Dillinger

(ii) Holding: P's rights lie in the expression: in the words, in the arrangement of facts, but not in the naked "truth"; not portraying works as fiction opens up possibility that facts will not be protected

(iii) "Explanatory hypothesis"

1. Some things are perhaps not facts, but rather explanatory hypotheses or historical theories

2. But isn't everything only a theory -- is there really any absolute state of knowledge?

3. Scope of cprt protection in theories that purport to be factual is quite narrow

(iv) Prof:

1. Any one fact is an unprotectable fact

i) E.g., the corpse did not match Dillinger's description - that is an alleged fact and anyone is free to say it

2. What we really have is a compilation - Nash not only unearthed fact by the sweat of the brow, but made an authorial decision of creativity in selecting and arranging those facts

3. Could attempt to argue that "Simon & Simon" use of the compilation of facts is infringement, but the court rejects this

(v) Book represents a compilation of fact and explanatory hypotheses, and CBS uses the analysis of history but none of the expression

1. This is really, though about non-copyrightability of facts

c. Matthew Bender Co. I

CA2 1998

(i) Facts: Ds want to market case reports on CD-ROM for smaller practitioners or law offices; Ds recognize that there are certain attributes of West cases that are proprietary to West; on the other hand, certain aspects of the cases are considered to be in the public domain

1. Ds take the West reporters but exclude aspects propriety to West

i) Proprietary to West: syllabus, headnotes, key numbers

ii) Ds took the rest of the opinion

a) West argues that even without syllabus, headnotes, and key numbers, West had added certain propriety information

1) West made a decision which parties to list (not necessarily how the opinion filed in the clerk's office would look)

2) West made a decision as to how to sequence the information (i.e., court name, then parties, then docket number, then date)

3) West included attorney information and indicated who did the argument and who did the brief and indicated what city they are from

4) Also include parallel citations

5) D picked up all those editorial enhancements

(ii) Public Domain: actual text of the opinion

1. Why? §105 - cprt protection is not available for work of the United States government, but United States can hold cprts transferred to it

(iii) Holding: very little creativity in dates, bluebook citations, order of information - these additions do not render the work original

(iv) Other principles

1. Originality in compilations must be either in the selection or the arrangement of materials

2. Bluebook citations are not copyrightable

i) Not original if dictated by "industry practice" or "external considerations"

ii) Even though theoretical range of choice may be infinite, realistic range of choice is virtually zero if standards are dictated by industry

3. Not original if there are relatively few options available for selection or arrangement

d. Matthew Bender Co. II

CA2 1998

(i) Facts: 2d case deals with star pagination; Matthew Bender wanted to include the star pagination that would show where the page breaks were in the original West reports

1. Slightly different argument from I:

i) Alleged compilation in the first case is the one actual case as reprinted by West

ii) Alleged compilation in the second case is a volume of West reports (in other words, West claims that 427 F.2d is a compilation because there is one case that follows another that follows another in a sequence)

2. West made an interesting concession in case II: competitor can use initial citation of case (fair use) -- but you cannot show the internal page breaks

(ii) Holding: page breaks do not result from any original creation by West -- their location may be lawfully copied

e. CCC Information Services v. Maclean Hunter Market Reports, Inc.

CA2 1994

(i) Facts: Maclean makes Redbook - prediction of prices of used cars for a given period, based on make, model, miles, options, etc.; D took this information and loaded it on a computer system and made it available to its subscribers

(ii) Holding: valuations are ideas (facts) that cannot be separated from the expression - no other way to express that idea

(iii) Cannot protect an idea, but here, the idea can only be expressed one way

(iv) Court thought CCC should lose because they are "theiving pirates" or free-riders

1. In effect, CCC wining would destroy incentives to create compilations

(v) Court tries to distinguish between two types of ideas: (1) ideas that other people can build on (building blocks) and (2) author's taste or opinion


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