COPYRIGHT LAW : FALL 2008 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA October 1, 2008

WRAP UP Characters are copyrightable outside of the story in which they occur if (2d Cir., 7 th Cir.) they meet Nichols specificity test or (perhaps 9 th ) the Warner story being told test.

CAN GOVERNMENT WORKS BE COPYRIGHTED?

HUGE EXCEPTION TO COPYRIGHTABILITY: MANY GOVERNMENT WORKS

17 U.S.C. Section 105 Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Definition of “Work of United States Government” (Sect. 101) A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties

Sacagawea Dollar Case: U.S. v. Washinigton Mint (D. Minn. 2000)

Public Affairs Assocs. v. Rickover Vice Admiral in the Navy Dep’t as Assistant Chief of the Bureau of Ships for Nuclear Propulsion Were his speeches in the public domain? Made in off duty hours, at locations near his duties, typed by Navy Secretary on office typewriter, photocopies made on Navy machines and paper stock

Works of State Governments Copyrightable under s. 105?

State Judicial Opinions Banks v. Manchester (1888) (judicial opinions)

Due Process Rationale Citizens who must comply with the law should have free access to it, including the right to make copies

Are other types of official state/municipal works noncopyrightable? E.g. County of Suffolk, N.Y. v. First American Real Estate Solutions (2d Cir. 2001)

Works of State Governments Copyrightable? Others?

Privately Drafted Legislative Codes Can legislative codes that are privately drafted but later adopted by states as law be the subject of copyright? See Veeck v. SBCCI, Inc., (5 th Cir. en banc 2002)

OTHER PUBLIC POLICY ISSUES Does “to promote the Progress of Science and useful Arts” preclude copyrightability for obscene works?

OTHER PUBLIC POLICY ISSUES Does “to promote the Progress of Science and useful Arts” preclude copyrightability for obscene works? No - see Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5 th Cir. 1979) (no content based restriction in IP Clause)

Mitchell Brothers 1971