COPYRIGHT LAW FALL 2008 Class 5 September 3, 2008 Fixation

WRAP-UP ORIGINALITY REQUIREMENT

Originality Requirement 17 U.S.C. § 102(a) “Copyright protection subsists in original works of authorship fixed in any tangible medium of expression....”

2 requirements of originality What are they? 1)independent creation 2)at least some minimal degree of creativity See Feist, 499 U.S. 340 (1991) – CB p. 75

In Bell v. Catalda, Justice Frank stated (C p. 56): “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.”

Catalda (C p. 54) “Originality [in the copyright] context means little more than a prohibition of actual copying. No matter how poor the 'author's' addition, it is enough if it be his own.”

Fixation Requirement A Constitutional Requirement

17 U.S.C. § 102(a) Copyright protection subsists... In original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED What are the 2 categories of material objects in which works can be fixed?

COPIES 17 U.S.C. § 101: “Copies” are material objects, other than phonorecords, in which a work is fixed, by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

PHONORECORDS 17 U.S.C. § 101: “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

COPYRIGHT LINGO What would a copyright lawyer call the book “Pride and Prejudice?” What about a DVD of the film “Pride and Prejudice”?

DEFINITION OF FIXATION See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

TATTOOS: Fixed?

Definition requires Sufficiently stable form Hotel de Glace, Quebec, Canada:

RAM Is a work that is temporarily stored in a Computer’s RAM a copy? Is that contrary to the House Report?

RAM Is a work that is temporarily stored in a Computer’s RAM a copy? Is that contrary to the House Report? Which says “transient reproductions... captured momentarily in the ‘memory’ of a computer” should not be deemed “fixed.” See C p. 86.

Video Game/Audiovisual Displays Fixed? Even if there is player participation? Is an attract mode required?

DEFINITION OF FIXATION See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

SPORTING AND OTHER EVENTS Can a baseball game be protected by copyright?

SPORTING AND OTHER EVENTS How about the Macy’s Thanksgiving Day parade?

SPORTING AND OTHER EVENTS How about a live broadcast of the Superbowl?

Definition of Fixation 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Separate definition of “transmission” Is this constitutional?

FIXATION OF BROADCASTS See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

IS THE BROADCAST PART OF THE FIXATION DEFINITION CONSTITUTIONAL? 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The Nightclub Performer Eve performs dramatic improvisations. If Adam videotapes Eve’s live performance of improvised drama,can Eve argue that her live performance is copyrightable? Does it make a difference if Eve simultaneously records her performance? If she simultaneously records and broadcasts it?

SPECIAL TREATMENT FOR MUSICAL PERFORMANCES: THE ANTI-BOOTLEGGING PROVISIONS Title 17 § 1101, 18 USC § 2319A Grew out of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and became law by operation of the 1994 Uruguay Round Agreements Act What types of works does it cover? What rights does it give? Is it constitutional?

§ 1101 Can Congress avoid the restrictions in the Copyright Clause of the Constitution by basing its legislative authority on the Commerce Clause instead?

Kiss Catalog KISS Catalog v. Passport Int’l Prods., motion for reconsideration granted, 405 F. Supp. 2d 1169 (C.D. Cal. Dec. 21, 2005)

U.S. v. Martignon, 2007 U.S. App. LEXIS (2d Cir. June 2007) An atrocious opinion, or not?