COPYRIGHT LAW FALL FALL 2008 CLASS 4 COPYRIGHTABILITY I Columbus School of Law The Catholic University of America Professor Fischer August 27, 2008

Wrap-Up Rationale underlying copyright law (e.g. utilitarian, natural right, personhood) will affect how you view the ideal scope of the law as well as What is meant by “Author” “writing” and “to Promote the Progress of Science and the Useful Arts” in the U.S. Constitution

DISTINGUISHING COPYRIGHT FROM OTHER TYPES OF IP Patent Trademark Trade Secrets

Frederick Warne & Co. v. Book Sales, Inc. (S.D.N.Y. 1979) CB p. 63 Lanham Act requires a “likelihood of confusion” Does © public domain status preclude trademark protection??

Dastar v. 20 th Century Fox (2003) CB p. 68 Crusade in Europe Campaigns in Europe

Article on Dastar See Jane C. Ginsburg, Of Mutant Copyrights, Mangled Trademarks, and Barbie's Beneficence: The Influence of Copyright on Trademark Law, Columbia Research Paper (Aug. 2007) Forthcoming in Graeme B. Dinwoodie and Mark D. Janis (eds.) Trade Mark Law and Theory: A Handbook of Contemporary Research (Edward Elgar Press, USA). Available at: = =

UNIT II Copyrightability: What subject matter is protected by copyright law?

Constitutional Question Is it a “Writing” of an “Author”? If so, Congress may protect it for a “limited time” to “promote the progress of Science and the Useful Arts” See e.g. Burrow-Giles

Originality Requirement Where in statute?

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

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

An Originality Question Jane writes a song. Jane never plays her song for anyone else, and consequently Emma has never heard Jane’s song. Suspend credulity and imagine that Emma writes a song that is identical to Jane’s. Is Emma’s song copyrightable?

NOVELTY IS NOT REQUIRED FOR COPYRIGHT PROTECTION Unlike patent protection See Alfred Bell & Co. v. Catalda (2d Cir. 1951) CB 52

Learned Hand: Independent Creation Requirement “...[I]f by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.” Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940)

In Bell v. Catalda, Justice Frank stated: “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.”

Can “Dr. Nerd” Copyright a heretofore undiscovered and unpublished manuscript of a Shakespeare play that he found while exploring the stacks of Mullen Library?

Exact Copies Arthur, a forger, creates an exact reproduction of Rembrandt’s 1629 Self Portrait. Experts cannot distinguish Arthur’s copy from the original Is Arthur an “author” for the purposes of copyright?

2 requirements of originality What are they?

COPYRIGHTABILITY: ORIGINALITY REQUIREMENT Two aspects: (1) independent creation (2) at least some minimal degree of creativity See Feist, 499 U.S. 340 (1991) – CB p. 75

Bleistein v. Donaldson Lithographing Co. (1903) CB 33 (at 34) Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone. That something he may copyright unless there is a restriction in the words of the act.

Bleistein v. Donaldson Lithographing Co. (1903) CB 33

Catalda (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.”

Jabberwocky WOULD “‘TWAS BRILLIG AND THE SLYTHY TOVES” be copyrightable?

Copyright Office Regulation provides that some works are not copyrightable, including: “Words and short phrases, such as names, titles, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” – 37 C.F.R. § 202.1(a)

ANOTHER TYPE OF IP MAY HELP HERE Trademarks

ORIGINALITY OF LABELS/SLOGANS TO WHAT EXTENT ARE THESE COPYRIGHTABLE See Sebastian, Int’l v. Consumer Contact (D.N.J. 1987) (CBmp. 79)?

Magic Marketing v. Mailing Services of Pittsburgh (W.D.Pa. 1986) CB p 79 Do the envelopes at issue exhibit a sufficient degree of creativity to be copyrightable?

John Muller & Co. v. New York Arrows Soccer Team, 802 F.2d 989 (8 th Cir. 1986) See the logo at p. 81 of your casebook – is it original enough to be copyrighted?

John Muller & Co. v. New York Arrows Soccer Team, 802 F.2d 989 (8 th Cir. 1986)

Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp. 2d 663 (S.D.N.Y. 2001)