COPYRIGHT LAW 2004: CLASS 8 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA FEBRUARY

TEST FOR ORIGINALITY FOR DERIVATIVE WORK Batlin: the additional material injected added to a prior work must constitute “some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium.”

Derivative Works: Harassment Fears Batlin majority: “To extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.”

INCONSISTENT APPLICATION OF BATLIN IN THE SECOND CIRCUIT? Is TOMY consistent with the EDEN TOYS case, the SHERRY case, or the ERG case? How can we reconcile these cases?

TWO SUGGESTIONS FOR RECONCILING 2d CIRCUIT CASES 1. Are differences immediately discernible? 2. What is the purpose of making the changes -- functionality or aesthetics?

PROBLEM OF DIMENSIONAL SHIFTS A 3D work is adapted to 2D (e.g. photographs of objects) OR A 2D work is adapted to 3D (e.g. sculptures based on 2D painting Or a 3D work is converted to a different scale of 3D

Ets-Hokin v. Skyy Spirits

SHL Imaging v. Artisan House Inc. (SDNY 2000)

MALJACK PRODUCTIONS: A DIFFERENT TEST FOR DERIV. WORKS IN THE 9th CIRCUIT? Would you affirm this decision?

Mona Lisa Reproductions

PICTORIAL, GRAPHIC AND SCULPTURAL WORKS What is a pictorial, graphic or sculptural work, according to the Copyright Act of 1976? What are some examples of such a work?

PICTORIAL GRAPHIC AND SCULPTURAL WORKS “...include two-dimensional and three- dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechnical or utilitarian aspects are concerned.” 17 U.S.C. § 101.

EXAMPLES Maps (protected since 1790) - though not place names on a map or arbitrary symbols on a map Photographs Paintings or Sculpture Prints Art Reproductions (as derivative works - need consent to use underlying works) Charts Diagrams Drawings (including technical, building plans)

Does It Matter If A Work is Useful? (Applied Art) Can a doll be copyrightable? Can a bank in the shape of a dog be copyrightable? Can a Christmas decoration be copyrightable?

PICTORIAL GRAPHIC AND SCULPTURAL WORKS “the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” - from definition of pictorial, graphic and sculptural works in 17 U.S.C. § 101

USEFUL ARTICLES What’s a useful article?

USEFUL ARTICLES What’s a useful article? Section a “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” Is that a circular definition?

A LITTLE HISTORY ON COPYRIGHTABILITY OF USEFUL ARTICLES Long protected by design patents Until 1954 assumption was that design patent was ONLY way to protect the design of a useful article Much criticism of this situation - why was there criticism? Why has copyright law traditionally been hostile to protecting the design of a useful articles?

MASKS AND COSTUMES Are costumes copyrightable? Are nose masks copyrightable?

MAZER v. STEIN (1954) Involved dancer lamp not dissimilar to one on left What is the holding of this case? How was this case a “radical change”? Is it constitutional?