Class 12 Copyright, Autumn, 2016 Rights under Section 106 11/9/2018 Class 12 Copyright, Autumn, 2016 Rights under Section 106 Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolf Teaching Scholar The Law School The University of Chicago

106. Exclusive rights in copyrighted works 11/9/2018 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; November 9, 2018

11/9/2018 106 (Cont.) (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; November 9, 2018

11/9/2018 Limits on 106(1), (2) and (3) Rights under 106(1), 106(2) and 106(3) do not depend on type of work, BUT … Sec. 113 limits rights for pictorial, graphic and sculptural works Sec. 114 limits rights for sound recordings Sec. 115 limits rights for nondramatic musical works Sec. 120 limits rights for architectural works November 9, 2018

11/9/2018 Limits on 106(1), (2) and (3) Sec. 121 limits rights for nondramatic literay works for the blind or other persons with disabilities November 9, 2018

11/9/2018 106 (Cont.) (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly November 9, 2018

11/9/2018 106 (Cont.) (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; November 9, 2018

106. Exclusive rights in copyrighted works 11/9/2018 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; November 9, 2018

11/9/2018 101: Derivative Work A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. November 9, 2018

11/9/2018 101: Derivative Work 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”. November 9, 2018

Substitutes and Complements 11/9/2018 Substitutes and Complements Substitutes Would I buy product X instead of product Y? E.g., would I buy the picture book of beanie babies instead of an actual beanie baby? Complements Would I buy product X with product Y? E.g., would exposure to a beanie baby book increase beanie baby sales? November 9, 2018

11/9/2018 Lee v. A.R.T. Co. Core Facts Annie Lee sells art notecards and lithographs to Deck the Walls Deck the Walls sells those to A.R.T. Co. ART glues cards to tiles, resells tiles Lee sues ART alleging that ART is creating a derivative work, in violation of Sec. 106(2). Who wins? November 9, 2018

11/9/2018 The Card on a Tile Hypo Lee creates notecard and claims copyright Lee glues card to tile and claims copyright on the card-on-a-tile How many copyrights does she get? Does this eliminate competition in one medium? November 9, 2018

Analysis Answer Clear copyright on notecard As to card-on-a-tile 11/9/2018 Analysis Answer Clear copyright on notecard As to card-on-a-tile 103(b): The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work November 9, 2018

Analysis What is contributed by the author of the card-on-a-tile? 11/9/2018 Analysis What is contributed by the author of the card-on-a-tile? 103 deals with compilations and derivative works in parallel Like Feist on compilations, gluing the notecard to a title lacks sufficient incremental originality Can’t separately copyright card-on-a-tile November 9, 2018

Do We Need More? No Copyright in Card-on-a-Tile 11/9/2018 Do We Need More? No Copyright in Card-on-a-Tile True for Lee, true for ART Does the absence of copyrightability of the card answer the question as to whether Lee can block ART? November 9, 2018

The BB Guide Hypo Impermissible derivative work? 11/9/2018 The BB Guide Hypo I collect info on actual BB sales I publish info on those sales and make statements about likely market conditions No pictures Impermissible derivative work? November 9, 2018

11/9/2018 Answer No Causally related to Beanie Babies but that isn’t enough to create a derivative work Just info about facts Facts aren’t copyrightable (Feist, 102(b)) and these are “real” facts—Stinky sold for $25 in 2005—and not “cultural” facts of SAT variety November 9, 2018

BBs Collector’s Guide Hypo I collect info on actual BB sales 11/9/2018 BBs Collector’s Guide Hypo I collect info on actual BB sales I publish info on those sales and make statements about likely market conditions I add pictures per a license from Ty November 9, 2018

BB Collector’s Guide Ty’s Licensing Impermissible derivative work? 11/9/2018 BB Collector’s Guide Ty’s Licensing Forbids licensees to reveal that they are licensed by Ty Requires statement: “This publication is not sponsored or endorsed by, or otherwise affiliated with Ty, Inc. All Copyrights and Trademarks of Ty Inc. are used by permission. All rights reserved.” Impermissible derivative work? November 9, 2018

License-Free Guide with Pictures 11/9/2018 License-Free Guide with Pictures Hypo I collect info on actual BB sales I publish info on those sales and make statements about likely market conditions I add pictures w/o permission from TY Impermissible derivative work? Should it matter whether Ty has licensed others to add pictures to their guides? November 9, 2018

Beanie Baby Photographs 11/9/2018 Beanie Baby Photographs Hypo I take photographs of Beanie Babies and sell them Is this a copy of the original work? an impermissible derivative work? November 9, 2018

Answer Yes PIL concedes photograph of Beanie Baby is derivative work 11/9/2018 Answer Yes PIL concedes photograph of Beanie Baby is derivative work November 9, 2018

For the Love of Beanie Babies 11/9/2018 For the Love of Beanie Babies Situating the Book Fun pictures of beanie babies with light text Impermissible derivative work? November 9, 2018

11/9/2018 Answer Yes November 9, 2018

106. Exclusive rights in copyrighted works 11/9/2018 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: … (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; November 9, 2018

The First-Sale Doctrine 11/9/2018 The First-Sale Doctrine 109(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. November 9, 2018

11/9/2018 November 9, 2018 The Castaway

The Castaway: Copyright Page 11/9/2018 November 9, 2018 The Castaway: Copyright Page

Selling the Book Core Facts 11/9/2018 Selling the Book Core Facts Bobbs-Merrill sells The Castaway with the reservations notice beneath the copyright statement in each copy of the book Macy’s is selling the book for 89 cents Macy’s bought the book from wholesalers; everyone knew of the notice; no contracts regarding sales price November 9, 2018

Reading Sec. 4592 From the Opinion 11/9/2018 Reading Sec. 4592 From the Opinion “Sec. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statute, statuary, and of models or designs intended to be perfected as November 9, 2018

Reading Sec. 4592 From the Opinion 11/9/2018 Reading Sec. 4592 From the Opinion “works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.” U.S. Comp. Stat. 1901, p. 3406. November 9, 2018

11/9/2018 Meaning? Says the Court “In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract.” November 9, 2018

11/9/2018 Meaning? Says the Court “To add to the right of exclusive sale the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when November 9, 2018

11/9/2018 Meaning? Says the Court “interpreted with a view to ascertaining the legislative intent in its enactment.” November 9, 2018

November 9, 2018

Organizing Secondary Markets 11/9/2018 Organizing Secondary Markets Three Situations Sequential ownership (used books, used MP3s?) One owner, many users (rental markets) One owner, many users (libraries) November 9, 2018

11/9/2018 [SC: Author’s Guild] November 9, 2018

11/9/2018 Source: http://www.oreillynet.com/pub/wlg/1291 November 9, 2018

101: Perform To “perform” a work means 11/9/2018 101: Perform To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. November 9, 2018

101: Display To “display” a work means 11/9/2018 101: Display To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. November 9, 2018

101: Publicly To perform or display a work “publicly” means‑‑ 11/9/2018 101: Publicly To perform or display a work “publicly” means‑‑ (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or November 9, 2018

11/9/2018 101: Publicly (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. November 9, 2018

101: Transmit To “transmit” a performance or display 11/9/2018 101: Transmit To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. November 9, 2018

11/9/2018 106 (Cont.) (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly November 9, 2018

11/9/2018 “That any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photographs or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns,” 1870 Copyright Act (2nd General Revision) November 9, 2018

11/9/2018 “shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works.” 1870 Copyright Act (2nd General Revision) November 9, 2018

The Cassilis Engagement (1907) 11/9/2018 November 9, 2018 The Cassilis Engagement (1907)

The Cassilis Engagement (1907) 11/9/2018 November 9, 2018 The Cassilis Engagement (1907)

Building a Search Engine 11/9/2018 Building a Search Engine Hypo Google wants to provide search services Sets up service in which web pages will be indexed unless page opts out Indexing means copying text and creating thumbnails of images Copyright issues? November 9, 2018

November 9, 2018

Understanding Perfect10 11/9/2018 Understanding Perfect10 What is the case about? Given that Perfect10.com can opt out of the Google crawl and Google will respect that, what is the issue? Should we treat thumbnail images and in-line link images differently? November 9, 2018

Display, Distribution and Derivative Works 11/9/2018 Display, Distribution and Derivative Works Three Questions Who displays an image? The server where it is stored? The entity providing the html code to invoke the presentation of the image? The creator of the browser? The person who clicks the link? Someone else? Any? All? Same questions re distribution Is an in-line linked page a derivative work? November 9, 2018