COPYRIGHT LAW FALL 2006 copyrightability of characters PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA October 2, 2006

WRAP-Up: copyrightability of PGS PGS that is a useful article is protectible only if it has aesthetic features that are separable from its utilitarian aspects Courts have used several approaches to determine whether there is separability Most courts recognize conceptual separability, but there is no one agreed test for it. You should be familiar (and be able to apply) the main tests set out in Pivot Point.

WRAP UP POINT: COPYRIGHTABILITY OF TYPEFACE DESIGNS Copyright protection for typeface designs was deferred. The House Committee Report did not deny that typeface designs were writings”. Denied they were pictorial, graphic, sculptural works; argued they were useful articles Typeface designs are thus only copyrightable if they are not useful articles.

WRAP UP: Copyrightability of Architectural Works By adding s. 102(8) and definition of architectural works in 1990, Congress clearly indicated that architectural works are not subject to separability requirement. A work of architecture may be protectible even if its individual elements (e.g. doors, windows, etc.) are not. Definition of “architectural work” limits it to the design of a building.

WHAT STRUCTURES ARE COVERED? House Report (CB p ) Houses, office buildings, malls (not individual units in malls: must be free- standing) Habitable structures, garden structures like gazebos, churches, garden pavilions NOT pedestrian walkways, interstate highway bridges, bridges, canals, dams, cloverleafs

WHAT STRUCTURES ARE COVERED? C.O. Regulation (b)(2) – a building is humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.”

Kiosks?

LIMITATIONS What other limitations are in ACPA?

LIMITATIONS What other limitations are in ACPA? 1. State common laws and statutes relating to zoning, historic preservation, building codes (s. 301(b)(4))

LIMITATIONS Right to alter or destroy building (120(b)) – applies to building embodying an architectural work Does this apply to pre 1990 structures built from copyrighted plans, like the Superdome? Curtis v. Benson, 959 F. Supp. 348 (E.D. La. 1997)

Section 120(b) Notwithstanding the provisions of s. 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the copyrightable work, make or authorize the making of alterations to such building and destroy or authorize the destruction of such buildin

Another limitation: 120(a) The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Zanja Madre: Batman Forever

Zanja Madre

Michael Graves: Portland Public Services Building 1980

Portland Building

COPYRIGHTABILITY OF CHARACTERS Main issue: Are characters copyrightable separate from a story in which it appears? If so, when? REMEMBER - Characters may also be trademarked!

Nicholls Test CB p According to Learned Hand, are any/all characters copyrightable?

Nicholls Test According to Learned Hand, are any/all characters copyrightable? Yes, characters can be protected independent of the plot, but “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

9th Circuit Sam Spade Test CB 260 Did the court need to decide the issue of character copyrightability in this case? What rule for character copyrightability is set out in Warner Brothers v. Columbia Broadcasting System?

9th Circuit Sam Spade Test The story being told test - no character is protectable unless “the character really constitutes the story being told.” Narrower or broader than Nicholls test? Is it wrong? Has it been overruled? (See Gaimon)

Anderson v. Stallone (C.D.Cal. 1989) – CB 261 What are the facts of this case? What is the issue? What test for copyrightability of characters does the court use? Are the Rocky characters copyrightable?

MGM v. American Honda (C.D.Cal. 1995) (CB p. 264) Is James Bond copyrightable? Would any tuxedo- clad Brit infringe?

Gaiman v. McFarlane, 360 F.3d 644 (7 th Cir. 2004) (CB p. 265) Does this eradicate the “Story being told” test?