Copyright Law Ronald W. Staudt Class 8 February 16, 2009

Schwarzman: Too Cheap to Pay for a FT Subscription! City File NY from Olta Andoni Financial Times… filed a lawsuit against [the] Blackstone Group …for sharing an FT username and password instead of setting up separate accounts for its employees. Yes, an unknown "senior employee" at the colossal private equity firm "authorized the initiation and repeated renewal of an individual, personal subscription to FT.com" and then distributed the login details to company employees so they could all join in on the fun Officials at the FT became a bit suspicious when they realized a very industrious Blackstone employee was accessing thousands of articles a day

Video Site's Investors Not, On Role Alone, Liable For Alleged Infringements Video Site's Investors Not, On Role Alone, Liable For Alleged Infringements BNA’s Electronic Commerce & Law Report 2/12/2009 z[A] federal court in California has ruled that investors who appear to have done little more than serve on the board of directors for an online video-sharing service cannot be held liable for the service's alleged copyright infringement. The court said that a leadership role in a video-sharing corporation was not itself enough to substantiate claims of contributory or vicarious copyright infringement.

Authors to Google Book Search: Pay up! by Elinor Mills Cnet News February 11, 2009 zUnder a $125 million settlement Google reached in October with book authors and publishers who sued over the company's book- scanning project, the search giant is required to provide notice to authors, publishers, and their heirs and successors that they may be eligible for payment. … Authors and others are submitting claims on a special Web site that went live January 5, attorney Michael Boni said in an interview. Under the settlement terms, copyright holders will receive $60 per scanned book and 63 percent of ad revenue. … Google is digitizing the works from many major libraries, including the New York Public Library and the libraries at Stanford and Harvard universities, and is making those texts searchable on pages with advertisementsreached in Octoberspecial Web site

Legal ruckus over Kindle 2's text- to-speech feature C. Null 2/12/2009 from Julia Byerson It was hardly the most interesting or earth-shaking part of Jeff Bezos's introduction of the Kindle 2 on Monday, but one small, experimental feature in the device is already causing a minor uproar. Specifically: The Kindle 2's text- to-speech function, which will use a computerized voice to read aloud anything displayed on the device's screen. The problem? The Authors Guild says that that's against the law.Kindle 2against the law The challenge revolves around audiobooks, which are treated separately from printed material from a copyright standpoint. A retailer can't record a copy of a book on a CD and sell it or bundle it along with a novel without paying a separate fee, just as buying a copy of an audiobook doesn't entitle you to a free copy of the printed version

Compilations z§ 101. Definitions *** A "compilation" is a 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. The term "compilation" includes collective works.

Compilations and derivative works z§ 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (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, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Compilations– In Out zWainwright zRoth – (total concept & feel) zAtari- Breakout zFurniture arrangement zCCC Red Book z Rural’s white pages z Sem-Torq sign set (132) z Boston T shirts(134-35) z West cases & page numbers z ATC and Southco part numbers z Bell South Yellow pages

Assessment Technologies v. WIREdata zWhy is J. Posner appalled? Towns hire Assessors who gather tax data Market Drive database- 34 categories 456 fields Assessors input data into Market Drive Defendant WIREdata demands data from the towns. Three towns say no because it would violate their MarketDrive software license. Everybody sues.

Assessment Technologies v. WIREdata Does AT have a valid copyright? What does that copyright protect? Directive 96/9/EC and the sui generis right?

Sporaco v. Lawler zFacts yWho is Sporaco? yWho owns his plans? yWhat is in the plans? yWhat is Sporaco’s claim? yWhat happened in the District Court? zAre maps copyrightable? yIf so what is protected?

Sporaco v. Lawler zExisting site plan and the fact/expression dichotomy— ySelection, coordination, arrangement & pictorial graphical contribution. xSJ process. zProposed site plans and idea/expression dichotomy— yAbstractions test? Details?

Maps and © zSweat of the brow and the framers? zHow do you advise a client to enhance the copyrightability of a proposed map? zWhat about mileage tables derived from creative copyrightable maps?

Compilations– In Out zWainwright zRoth – (total concept & feel) zAtari- Breakout zFurniture arrangement zCCC Red Book zAll of Parker’s poems zSporaco’s proposed site plan z Rural’s white pages z Sem-Torq sign set (132) z Boston T shirts(134-35) z West cases & page numbers z ATC and Southco part numbers z Bell South Yellow pages z Assessor data in AT z Sporaco’s existing site plan

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. 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”. 17 U.S.C. 101.

Derivative Works Batlin & Son v. Snyder facts holding re creativity dissent

Derivative Works Bell (mezzotints) and Alva (Hands of God) and BridgemanBridgeman Durham (Mickey Mouse) and Eden Toys (Paddington) Sherry (towels) and Gracen (Oz) and ERG (Doughboy) Ets-Hokin (vodka bottle) and Schiffer (fabric photos)

BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP. 36 F. Supp. 2d 191 In this case, plaintiff by its own admission has labored to create "slavish copies" of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality -- indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.

Schiffer Pub. V. Chronicle Books zBridgeman's stated purpose was to "reproduce precisely" the underlying works of art. Indeed, the goal of reproducing a famous work of art is an accurate replication that is faithful to the original artwork. There is no ulterior creative purpose - indeed, creativity is anathema to that goal. Plaintiffs, by contrast, did not attempt to replicate fabric swatches as precisely as possible. Rather, Plaintiffs' books were focused mainly on patterns, and Plaintiffs' photographers strove to create images that were visually interesting. In fact, several photographers clearly stated that they never compared the fabric swatches to their photographs, precisely because such a comparison was unimportant to their goals.

Derivative Works– In Out zAlva – Hand of God zBell – mezzotints zEden- Paddington bear zSkyy Vodka photo (thin) zSchiffer- photos of fabric z Batlin – plastic Uncle Sam z Durham- Tomy’s wind up Mickey Mouse z Sherry – reworked towels z Gracen – Dorothy painting copied on plate z ERG- Doughboy costume z Bridgeman –art photos

AP alleges copyright infringement of Obama image By HILLEL ITALIE from Kurt Iselt & Michael Keefe & Byerson On buttons, posters and Web sites, the image was everywhere during last year's presidential campaign: A pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE. Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay. The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington. The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

The image of a president By Hugh Howard February 16, 2009 Chicago Tribune Shepard Fairey went Souza one better. Fairey required none of Obama's time to produce his now ubiquitous red, white and blue illustration. Fairey Googled The Associated Press photograph taken by Mannie Garcia and manipulated it to make Obama-as-hope. The resulting image has been reproduced endlessly, on T-shirts, yard signs and stickers and has even appeared in various guises on the covers of Time and Esquire. George WashingtonGeorge Washington would have been jealous. When painter Gilbert Stuart painted his portrait, the general spent 15 hours posing, hating every self-conscious moment. In contrast, Barack Obama gave White House photographer Pete Souza five minutes to record his easy smile.Gilbert StuartBarack Obama White House