COPYRIGHT LAW 2002 Columbus School of Law The Catholic University of America Prof. Fischer April 8, 2002

WRAP-UP POINTS: NON- LITERAL COPYING In Nicholls v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable. He stated that copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.

WRAP-UP POINTS: COPYRIGHTABILITY OF COMPUTER SOFTWARE CONTU 1978 report made clear that computer software should be protected under copyright law and amended law to add definition of “computer program”. This remains controversial.

WRAP-UP POINTS: COMPUTER COPYRIGHT Early caselaw in the 1980s, such as Apple v. Franklin, dealt with literal copying. Now well established that exact copying code infringes copyright.focussed on extent to which literal copying of computer software violates copyright law. Second generation computer software copyright cases dealt with nonliteral copying of program elements.

NON-LITERAL COPYING Should non-literal copying of computer software be protected under copyright law?

MORE on COMPUTER ASSOCIATES Can programs with little protectable material be freely copied under the Altai test? Many commentators, e.g., Pamela Samuelson, have praised Altai’s approach. Many large computer companies dislike it. Nevertheless it has been adopted by many courts - indeed all courts since 1992 have preferred Altai over Whelan.

SUBSEQUENT JUDICIAL ADOPTION OF ALTAI Unfortunately, not all courts have approached the abstraction-filtration- comparison analysis in precisely the same way The 10th Circuit, in Gates Rubber is well- known for having moved beyond Altai

GATES RUBBER (10th Cir. 1985) Court gives further content to abstraction test - identifies 6 levels of gradually declining abstractions Court also gives further content to filtration part of Altai analysis

SCENES A FAIRE Scenes a faire are “incidents, characters or settings which are, as a practical matter, indispensable, in the treatment of a given topic.” Atari (7th Cir. 1982) They are not protectable under copyright law - because this would protect an idea and/or violate the merger doctrine. Does this doctrine apply in Steinberg case according to the S.D.N.Y.? -see p. 483

KURT ADLER V. WORLD BAZAARS Turn to p Does Photo B infringe Photo A? (Access is acknowledged). Why or why not?

RIGHT TO MAKE PHONORECORDS See s. 106(1) Definition of Phonorecords: 101 Must be fixed Copies and Phonorecords are mutually exclusive Was the karaoke CD-ROM in ABKCO v. Stellar a “phonorecord”? Why did it matter?

ALISON

RIGHT TO MAKE/DISTRIBUTE PHONORECORDS What would Linda Ronstadt have to do to ensure that her recording of Alison did not infringe Elvis Costello’s copyright in the song?

MECHANICAL LICENSE What’s a mechanical license? See section 115

MECHANICAL LICENSE Primary purpose to distribute to public for private use Phonorecords must have been distributed under authority of copyright owner Can’t use for pirating of sound recordings Must serve TIMELY notice of intention on copyright owner Must pay royalty established now by ad h oc arbitration panels (now 8c/song or 1.55 cents per minute whichever larger)

WHAT HAPPENS IF YOU FAIL TO SERVE TIMELY NOTICE UNDER s. 115(b)? See Cherry River Music v. Simitar Entertainment (S.D.N.Y. 1999)

CHANGING THE SONG To what extent can Linda Ronstadt validly change the song Alison in her recording of it under a compulsory license?

CHANGING THE SONG See s. 115(a)(2) - she can make a musical arrangement “to the extent necessary to conform it to the style or manner or interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work” without Costello’s express consent.

HARRY FOX AGENCY What is the Harry Fox Agency?

REPRODUCTION RIGHT IN SOUND RECORDING How does section 114 limit the rights of the copyright owner in sound recordings? Is sampling copyright infringement? Why or why not?