COPYRIGHT LAW 2003: CLASS 6 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA JANUARY 27, 2003

CLASS OUTLINE 1. Wrap-Up Points – Idea/Expression Dichotomy, Compilations of Facts 2. Goals for this class: –A. To be able to analyze the copyrightability of derivative works –B. To be able to analyze the copyrightability of useful articles –Note – Class of Jan is rescheduled to Sat. Feb. 2 at 1:10 p.m. in Room 307

Wrap-Up Idea-Expression Dichotomy This is a fundamental copyright principle What you should learn about this principle is not a definition of what is an idea and what is expression, but that it is a tool for analyzing different aspects of creative works. Codified in section 102(b) of the 1976 Copyright Act Main purpose – separate works in public domain from works that can be protected under copyright. The merger doctrine applies when a secondcomer must use the expression of the first because the idea can’t be expressed in another way.

Wrap-Up: Aspects of Idea- Expression Dichotomy Words and short phrases are not copyrightable (37 C.F.R. §202.1(a)) Blank forms designed for recording information are not copyrightable (37 C.F.R. §202.1(c) Facts are not copyrightable, though compilations of facts may be copyrightable.

Wrap-Up: Copyrightability of Compilations The U.S. Supreme Court has held that essentially what is copyrightable in a factual compilation is the selection, coordination or arrangement of facts, provided this is sufficiently original. (Feist (1991)) In Feist, the Supreme Court rejected the “sweat of the brow doctrine”

Originality According to Feist Justice O’Connor wrote the Court’s opinion in Feist Describe Justice O’Connor’s view of the originality requirement?

Originality Justice O’Connor on originality: “Originality does not signify novelty.” “To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark “no matter how crude, humble or obvious” it might be. 2 requirements for originality: (1) independent creation; (2) minimal level of creativity

THIN COPYRIGHT IN COMPILATIONS According to the Supreme Court in Feist, a compilation only has “thin” copyright protection. For a compilation to be copyrightable, it must be an original work of authorship by virtue of the particular selection, coordination, or arrangement of the facts within it. But copyright does not protect the facts in the compilation, only the author’s original contributions. See 17 U.S.C. § 103(b)

Was Rural’s Compilation Sufficiently Original?

Justice O’Connor held that Rural’s selection of listings was “obvious” in its selection and lacked the “modicum of creativity” required for copyrightability. Also the selection was not dictated by Rural but by state law. The coordination and arrangement of facts, which was alphabetical, was also not original.

Fairness Isn’t it unfair that others can use the fruits of the compiler’s labor without compensation?

A Hypothetical Jan compiles a list of all 50 states. Can she argue that her list is copyrightable? What if Jan compiles a list of the 12 states containing the best dressed fashion models? Does it matter if Jan arranges the states in alphabetical order?

COMPARING COPYRIGHT TO OTHER FORMS OF IP How much originality is required for protectability under Patent Law ? How much originality is required for protectability under Trademark Law

REQUIREMENTS FOR PATENTABILITY Novelty Usefulness Non-obvious to people with ordinary skill in the art REMEMBER: Catalda case CB p. 85

TRADEMARKS The law of consumer marketing Protects brands from unauthorized confusing use by others Not because they are especially creative or novel But because they signify a single source of a product and a consistent level of quality to customers Protects reputation and goodwill - relates to use, not invention or authorship: non-intellectual intellectual property

DERIVATIVE WORKS What is a “derivative work”?

DERIVATIVE WORKS 17 U.S.C. § 101: A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.

103(b) (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

VIEWED BROADLY, ALMOST ALL WORKS ARE DERIVATIVE ! Mr. Justice Story in Emerson v. Davies “In truth, in literature, in science and in art, there are, and can be, few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before.”

BATLIN V. SNYDER (2d Cir. 1976) CB p. 109 – is there a higher standard of originality for derivative works?

TEST FOR ORIGINALITY FOR DERIVATIVE WORK According to the Batlin majority, what is the proper test for originality for a derivative work? Is Batlin really distinguishable from Alva Studios v. Winninger (the “Hand of God” case)? Why does Meskill CJ dissent? Do you agree with the dissent?

Derivative Works: Harassment Fears Batlin majority: “To extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.” Is this fear justified, in your view? Why or why not?

ERG v. Genesis (9 th Cir. 1997) CB p. 111 Were ERG’s inflatable 3-D versions of copyrightable characters copyrightable derivative works? Why or why not? Did/should the court apply the same originality standard as for Feist?

Pickett v. Prince (7 th Cir. 2000) ;

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103(a) (a) The subject matter of copyright.. includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Particular Types of Protected Works See 17 U.S.C. § 102(a)(1)-(8) Know these categories Also know that they are non-exclusive Some have statutory definitions in section 101 (“literary works”, “audiovisual works”, “pictorial, graphic and sculptural works”, “sound recordings”, “architectural works”), some don’t (“musical works”, “dramatic works”, “pantomimes and choreographic works”) We will spend a few classes considering some of the hard problems relating to these categories of copyrightable works

Problem 1: Useful Articles