COPYRIGHT LAW FALL 2008: CLASS 7 THE CATHOLIC UNIVERSITY OF AMERICA Sept. 10, 2008

WRAP UP: Baker v. Selden Baker v. Selden – copying for purposes of use as opposed to explanation cannot be copyright infringement. We considered extent to which this remains good law: S. 102(b) S. 113(b)

WRAP-UP: Baker v. Selden extended? The Blank form doctrine Statement in Baker: “blank account-books are not the subject of copyright.” Copyright Office adopted blank form rule in regulation 202.1(c); accepted as law in Bibbero (9 th Cir. 1990) [C p. 106] Nimmer has criticized this regulation as inconsistent with the originality requirement Also criticism by courts in the 2d Circuit, e.g. Kregos Another criticism of Baker is in the infringement context – that copying for the purposes of use will never be infringement

COPYRIGHTABILITY OF RECIPE Julia Grownup perfects a recipe for pumpkin pie. She writes down the ingredients and a straightforward set of instructions for making the dish using standard terms/style for recipe writers. Emeril copies her recipe verbatim in his bestselling cookbook. Can she win a copyright infringement case?

COPYRIGHT IN FACTUAL NARRATIVES To what extent are facts copyrightable?

COPYRIGHT IN FACTUAL NARRATIVES To what extent are facts copyrightable? – see s. 102(b)

COPYRIGHT OFFICE REGULATION: No protection in [W]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources. (§ 202.1(d)) Can you copyright a conversation?

Nash v. CBS CB p. 124 Extent of Copyright in historical facts? Extent of Copyright in interpretation of historical facts?

John Dillinger photos Lady in Red (left) Biograph (below)

What about the copyrightability of the man who conned Oprah? James Frey, A Million Little Pieces Presented as fact; really much of this work was fiction

What about historical novels? E.g. Barbara Chase- Riboud, Sally Hemings (see Burgess v. Chase- Riboud, 765 F. Supp. 233 (E.D. Pa. 1991) Fawn Brodie’s biography Allegedly infringing play, Dusky Sally

Wainwright Securities CB p. 128 Copyright protection of news events? Overprotection?

Protection for Factual Research? Does Feist sing the swan song for the “judicial ugly duckling” of Toksvig? See CB p. 128

COPYRIGHTABILITY OF FACTS Feist addressed a tension between two “well-established” copyright law propositions. What are they?

COPYRIGHTABILITY OF FACTS Feist addressed this problem: How should we reconcile the following “well- established propositions” 1. Idea/Expression Dichotomy and 2. Statutory copyright protection for compilations in Copyright Act

§103(a) The subject matter of copyright as specified by § 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.

§103(b) The copyright in a compilation or derivative work extends only to the matter 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.

DEFINITION OF COMPILATION AT § 101 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.

FEIST “Thin” Copyright Protection for compilations “

FEIST Abolished “Sweat of the brow doctrine” in e.g. Jeweler’s Circular Publishing Co. v. Keystone, 281 F.83 (2d Cir. 1922) So does an author have to extend at least some sweat for his work to be copyrightable? See Rockford Map Publishers, Inc. v. Directory Service Co., (7 th Cir. 1985) [C p. 123]