COPYRIGHT LAW SPRING 2004 CLASS 4 Professor Fischer Columbus School of Law The Catholic University of America January 28, 2004

Differences Between Copyright and Other Intellectual Property Other than copyrights, what other forms of intellectual property are there?

DIFFERENCES BETWEEN COPYRIGHTS AND OTHER FORMS OF INTELLECTUAL PROPERTY Patent Law (e.g. Bell v. Catalda (2d Cir. 1951) -- CB p. 52 Trademark Laws (e.g. Frederick Warne v. Book Sales, Inc. (S.D.N.Y. 1979)) -- CB p. 65

Patents Protect inventions - right to exclude others from making, using, offering for sale, or importing for 20 years (utility) Constitutional basis for Patent Act (35 U.S.C. s. 1 et seq.) How do you obtain patent rights and how long do they last?

REQUIREMENTS FOR PATENTABILITY (Utility Patent) Patentable subject matter Novelty Utility Non-obvious to people with ordinary skill in the art REMEMBER: Catalda case

HOW DO YOU GET A PATENT? File a patent application Comply with Description/Enablement/Disclosure requirement Pay a Fee Rigorous PTO examination process Getting a patent is very expensive and time consuming compared to getting a copyright!

TRADEMARKS Protects symbols/brands from unauthorized or confusing use by others Not because they are especially creative or novel But because they signify a single source of a product and a consistent level of quality to customers Protects reputation and goodwill - relates to use, not invention or authorship Duration: 10 years renewable if used CONSTITUTIONAL BASIS for TMS?

Constitutional Basis for TMs Commerce Clause of U.S. Constitution: Art. I cl. 1 s. 3 Federal TM statute is the Lanham Act, codified at 15 U.S.C. § 1051 et seq. Also state, common law protection

Can there be overlap between Copyrights and patents? Copyrights and trademarks?

COPYRIGHTABILITY What are the two statutory requirements for copyright protection?

COPYRIGHTABILITY Two statutory requirements for copyright protection in s. 102(a) 1. Original work of authorship 2. Fixation

An Originality Question Jane writes a song. Jane never plays her song for anyone else, and consequently Emma has never heard Jane’s song. Suspend credulity and imagine that Emma writes a song that is identical to Jane’s. Is Emma’s song copyrightable?

Learned Hand: Independent Creation Requirement “...[I]f by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.” Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940)

Can “Dr. Nerd” Copyright a heretofore undiscovered and unpublished manuscript of a Shakespeare play that he found while exploring the stacks of Mullen Library?

Exact Copies Arthur, a forger, creates an exact reproduction of Rembrandt’s 1629 Self Portrait. Experts cannot distinguish Arthur’s copy from the original Is Arthur an “author” for the purposes of copyright?

In Bell v. Catalda, Justice Frank stated: “A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations [to be considered original enough to be copyrighted]. Having hit on such a variation unintentionally, the “author” may adopt it as his own and copyright it.”

COPYRIGHTABILITY: ORIGINALITY REQUIREMENT Two aspects: (1) independent creation (2) at least some minimal degree of creativity See Feist, 499 U.S. 340 (1991) – CB p. 75

ORIGINALITY OF LABELS/SLOGANS TO WHAT EXTENT ARE THESE COPYRIGHTABLE ?

Copyright Office Regulation provides that some works are not copyrightable, including: “Words and short phrases, such as names, titles, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” – 37 C.F.R. § 202.1(a)

WORKS OF AUTHORSHIP See s. 102(a) (1)-(8) Overlapping? Exclusive?

STAND-UP COMICS AND COPYRIGHT Jay Leno: “I get ripped off. Everybody gets ripped off. There’s nothing you can do about it. You just learn to write faster.”

FIXATION Like originality, fixation is required for a work to be copyrightable It is a constitutional requirement - a work must be a “writing” to be copyrightable