Copyright Law Ronald W. Staudt Class 8 September 24, 2013

Overview for today zComputer Programs zPhotographs

Computer Programs zCONTU and the 1976 Act y“A computer program is a set of statements or instructons to be used directly or indirectly in a computer in order to bring about a certain result.” zApple v. Franklin yObject v. source code xSource- C, Fortran, Cobol, Basic xObject- machine instructions yROM v. floppy fixationROM yOperating system v. application softwareOperating system xOperating system- Linux, Windows Vista, xApplication software- WordPerfect, Word, PowerPoint, yProcess, system, method of operation yIdea/expression and merger

Lotus Development Facts Decision below Expression & methods of operation Identical to Baker? Method of operation v. screen display or code macros and compatibility Concurring opinion- utility and the calculus of harm method of operation or privileged use or shorter term?

Lotus Command Menu

Issues zMitel v. Iqtel yCan a work have both an unprotected “method of operation” and protectable expression? zCommunications to humans zRecipes and compilers zKeeton and utility

Pictorial, Graphic & Sculptural Works zToday: Photographs yMannion v. Coors yDiodato v. Spade zThursday: The Problem of Applied Art

Mannion Case Photographs

Mannion v. Coors zFacts yThree works: Mannion’s, Comp Board & Coors Billboard zPrima Facie Case yOwnership of a valid copyright yCopying yImproper Appropriation or Infringing Copying or substantial similarity between protected elements of P’s and D’s works

Mannion v. Coors zProtectible Elements of Photographs yRendition xContrast Bridgeman and SHL —features of the photo not sweat- usually photographer’s selection of camera, lens, lighting, filters, etc. is somewhat original. yTiming xImage, not subject evidences creativity yCreation of the Subject xKoons and Seligman zCompare protected elements of Mannion’s photo to the Coors Billboard—dissection in the 2 nd Cir.

Photography examples Page 839 Timing Creation of the Subject

Mannion v. Coors zIdea and Expression in Photographs yCompare the Kaplan photos and state the idea: xSense of desperation xBusinessman contemplating suicide xFirst person view of businessman contemplating suicide by jumping from a building with shoes set against distant street zIdea in photos= general description of subject or subject matter

Mannion v. Coors “Thus another photographer may pose a couple with eight puppies on a bench, depict a businessman contemplating a leap from an office building onto a street, or take a picture of a black man in white athletic wear and showy jewelry. In each case, however, there would be infringement (assuming actual copying and ownership of a valid copyright) if the subject and rendition were sufficiently like those in the copyrighted work.”

Mannion v. Coors- result “The parties have catalogued at length and in depth the similarities and differences between these works. In the last analysis, a reasonable jury could find substantial similarity either present or absent. As in Kisch v. Ammirati & Puris Inc., which presents facts as close to this case as can be imagined, the images are such that infringement cannot be ruled out - or in - as a matter of law.”

Kisch v Ammirati Puris, Inc

Diodato v. Spade zFacts and Photos yDetails that are part of the idea yScenes a faire yPose as common and predictable yHandbag as standard or de minimis zSummary Judgment for D- Elements copied from P’s photograph lack originality!

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