COPYRIGHT LAW 2002: CLASS 8 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA FEBRUARY 6, 2002

CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To be able to analyze the copyrightability of pictorial, graphic, and sculptural works

WRAP UP: DERIVATIVE WORKS In determining whether a derivative work is original enough to be copyrightable, the Second and Seventh Circuits have been motivated by a fear of harassment by the person or entity claiming copyright in the derivative work. The fear is that that person would use its copyright in the derivative work to improperly claim copyright in a public domain work, or to effectively prevent or greatly limit the licensor in relicensing a copyrighted work to someone else. The Ninth Circuit is less worried about this, and has accepted a lesser standard of originality for derivative works than the Second/Seventh Circuits.

WRAP UP POINTS:COPYRIGHTABILI TY OF COMPUTER PROGRAMS If it was not clear before that computer programs are copyrightable as literary works, a 1980 amendment to the current copyright statute made it clear that they are (if original expression) and this is well-settled law for source code, object code, operating systems, applications. See Apple Computer v. Franklin (CB p. 185) Some have questioned whether this should be so, doubting whether software should be copyrightable if it is directed towards machines rather than humans.

PICTORIAL, GRAPHIC AND SCULPTURAL WORKS What is a pictorial, graphic or sculptural work, according to the Copyright Act of 1976? What are some examples of such a work?

PICTORIAL GRAPHIC AND SCULPTURAL WORKS “...include two-dimensional and three- dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechnical or utilitarian aspects are concerned.” 17 U.S.C. § 101.

EXAMPLES Maps (protected since 1790) - though not place names on a map or arbitrary symbols on a map Photographs Paintings or Sculpture Prints Art Reproductions (as derivative works - need consent to use underlying works) Charts Diagrams Drawings (including technical, building plans)

Does It Matter If A Work is Useful? (Applied Art) Can a doll be copyrightable? Can a bank in the shape of a dog be copyrightable? Can a Christmas decoration be copyrightable?

PICTORIAL GRAPHIC AND SCULPTURAL WORKS “the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” - from definition of pictorial, graphic and sculptural works in 17 U.S.C. § 101

USEFUL ARTICLES What’s a useful article?

USEFUL ARTICLES What’s a useful article? Section a “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” Is that a circular definition?

A LITTLE HISTORY ON COPYRIGHTABILITY OF USEFUL ARTICLES Long protected by design patents Until 1954 assumption was that design patent was ONLY way to protect the design of a useful article Much criticism of this situation (e.g. Barbara Ringer’s Report from 1975) - why was there criticism? Why has copyright law traditionally been hostile to protecting the design of a useful articles?

Design Protection Legislation After Registrar Ringer’s report, there were many attempts to enact design protection legislation Narrow but complete design protection does exist to prevent copying the 3-D shape of 3 kinds of useful articles. What are these 3?

Design Protection Legislation Narrow but complete design protection does exist to prevent copying the 3-D shape of 3 kinds of useful articles. What are these 3? 1. Vessel Hulls 2. Architectural Works 3. Computer “mask” works

MAZER v. STEIN (1954) Involved dancer lamp not dissimilar to one on left What is the holding of this case? How was this case a “radical change”? Is it constitutional?

MASKS AND COSTUMES Are costumes copyrightable? Are nose masks copyrightable?

KIESELSTEIN-CORD CASE Are these belt buckles copyrightable? Why or why not? Do you agree with the majority or the dissent in this case?

MANNEQUINS Are human manniquins copyrightable?

TAXIDERMY FORMS Are taxidermy forms copyrightable? Should they be treated similarly to human mannequins?

TESTS FOR CONCEPTUAL SEPARATBILITY See Carol Barnhart case (1985) p. 214: What is Judge Jon Newman’s test for conceptual separability? What are the other tests he mentions? Do you agree with any of them?

IS THIS BIKE RACK COPYRIGHTABLE?