Law 507 | Intellectual Property | Spring 2003 Copyright II Class Notes: January 24, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

Today’s Agenda The Idea/Expression Distinction The Merger Doctrine The “Useful Articles” Doctrine Types of Works Some Thoughts on Duration 1/24/03 Law 507 | Spring 2003

Idea versus Expression Why restrict copyrights to expression? Distinguishing between ideas and expression: Baker v Selden (1879) Are accounting forms really uncopyrightable? Always? Are cookbooks copyrightable? What if Selden had a patent on his system? Would this change the copyright analysis? 1/24/03 Law 507 | Spring 2003

Idea versus Expression Key analysis: distinguishing idea from expression What in particular was uncopyrightable about Selden’s work? 1/24/03 Law 507 | Spring 2003

Idea versus Expression Key analysis: distinguishing idea from expression What in particular was uncopyrightable about Selden’s work? 3 categories of unprotected ideas: Animating concepts Principles or solutions Building blocks of expression Consider Problem 4-3: Are the forms copyrightable? Parts of them? 1/24/03 Law 507 | Spring 2003

Trigger: Limited way of Expressing Facts The Merger Doctrine Trigger: Limited way of Expressing Facts Morrissey v Procter & Gamble (1st Cir. 1967) Could P&G have written Rule 1 differently? (or . . . used the ideas, but not the precise phrases?) Of what relevance was P&G’s argument-accepted below-that it didn’t have access to M’s Rule 1? Is it true that there are limited ways of expressing facts? 1/24/03 Law 507 | Spring 2003

The Merger Doctrine What should be done about historical research? How should historians protect their work? Is this a policy problem? The Scenes à Faire doctrine: Why avoid protecting ‘standard treatments’? Are they similarly necessary to expression? If Friends has become the industry standard for showing relationships between young adults, has it lost its copyright? 1/24/03 Law 507 | Spring 2003

The Useful Articles Doctrine Brandir Int’l v Cascade Pacific (2d Cir 1987) 1/24/03 Law 507 | Spring 2003

The Useful Articles Doctrine Brandir Int’l v Cascade Pacific (2d Cir 1987) 1/24/03 Law 507 | Spring 2003

The Useful Articles Doctrine Analysis of Useful Article Doctrine Physical separability test Conceptual separability test ‘temporal displacement’ primary use test Brandir majority: unifying functional and asthetic Brandir dissent: independent asthetic concept Note on design patents Note: applies only to “pictoral graphic, and sculptural works” 1/24/03 Law 507 | Spring 2003

The Useful Articles Doctrine Analysis of Useful Article Doctrine Physical separability test Conceptual separability test ‘temporal displacement’ primary use test Brandir majority: unifying functional and asthetic Brandir dissent: independent asthetic concept Note on design patents Note: applies only to “pictoral graphic, and sculptural works” 1/24/03 Law 507 | Spring 2003

Types of Works Literary works Pictorial, graphic, sculptural works Architectural works Dramatic, Pantomime, and Coreographic Works Musical Works and Sound Recordings Motion Pictures and A/V Works Derivative works and compilations Roth Greeting Cards (1970) Artwork: ©, but not infringed Text: not © 1/24/03 Law 507 | Spring 2003

Duration of Copyright 1909 Act: 56 total years (renewal at 28) 1976 Act: Life of the author + 50 years; 75/100 for entity authors 1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors Eldred v Reno: challenge of 1998 CTEA “limited times” as a limit on Congress History & text suggests “limited” is interpreted by Congress 1st Amendment as requiring heightened scrutiny Not unless “traditional” boundaries of © are altered 1/24/03 Law 507 | Spring 2003

The Rights of Copyright Owners Next Class Copyright III The Rights of Copyright Owners 1/24/03 Law 507 | Spring 2003