Copyright Law: Spring 2002 Professor Susanna Fischer CLASS 11 February 18, 2002

GOALS FOR CLASS To finish up copyrightability of characters To learn how to analyze whether works prepared by government employees, state or federal, are copyrightable. To begin a new unit on ownership of copyright To learn about the doctrine of works made for hire

WRAP UP POINTS: CHARACTERS The prevailing view is that characters per se are entitled to copyright protection separate of the story in which they appear. You should be familiar with the two major tests for copyrightability in characters: the Nicholls “specificity” test and the Warner “story being told” test (which does not apply to comic book characters, only to word portraits).

DeCarlo v. Archie Comic Publications Inc. Are comic book characters more or less protectable than literary characters?

King Features Syndicates (2d Cir. 1924) CB p. 243 Did the toy “Sparky” infringe the cartoon character? What does the Copyright Act protect, according to the 2d Circuit? Is this stated level of protection overbroad?

Detective Comics v. Bruns (2d Cir. 1940) Did Wonderman infringe Superman? Why or why not? Has the court properly limited itself to protecting the plaintiff’s expression rather than an idea? Would it have made any difference if Defendant’s comic had featured Hercules instead of Wonderman?

HUGE EXCEPTION TO COPYRIGHTABILITY: GOVERNMENT WORKS To what extent are U.S. Government works copyrightable? What about works prepared under a government contract? Can a Federal Government employee own a copyright? If so, when? What is the justification for these rules?

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. Does this apply to postage stamps?

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) Can D Minnetonka Mint successfully rely on section 105 to defend a copyright infringement action brought by U.S. Mint for issuing silver replica of the Sacagawea dollar?

Works of State Governments These are not addressed in section 105 so to what extent can works generated by state governments obtain federal copyright protection? What are the arguments for and against Example: state judicial opinions

Works of State Governments In Banks v. Manchester (1888), the U.S. Supreme Court refused to find that a compilation of state court judicial opinions was copyrightable The rationale was public policy and a kind of due process rationale: judicial opinions are publicly owned because judges are paid with public funds and the public interest is served by free access to the law rather than judicial control of their opinions

County of Suffolk v. First American (2d Cir. 2001) Issue: Are “tax maps” prepared by Suffolk County copyrightable? What procedural stage has this case reached at the time of the Second Circuit opinion?

County of Suffolk v. First American (2d Cir. 2001) Issue: Are “tax maps” prepared by Suffolk County copyrightable? What procedural stage has this case reached at the time of the Second Circuit opinion? Motion to dismiss for failure to state a claim How does the Second Circuit rule on appeal?

County of Suffolk v. First American (2d Cir. 2001) Suffolk County has stated a valid claim that their tax maps are copyrightable 1. Incentive rationale for copyright does apply to some government works and may apply to creation of tax maps 2. Due process concerns are met - there are notice requirements of obligation to pay property taxes that are separate from tax maps, and taxed individuals are able to get maps.

Privately Drafted Legislative Codes Can legislative codes that are privately drafted but later adopted by states as law be the subject of copyright? See Practice Mgt. Info. Corp. v. American Medical Ass’n (9th Cir. 1997) - where AMA created coding system was adopted by HCFA. Did this adoption cause the coding system to become uncopyrightable? Pending rehearing: Veeck v. SBCCI (5th Cir.)

Veeck v. SBCCI The U.S. Court of Appeals for the Fifth Circuit has granted rehearing en banc in this case. To see some amicus briefs filed by law professors, go to: and scroll down to Veeck

Mitchell Bros. Film Group v. Cinema Adult Theater (5th Cir. 1979) What was the plaintiffs’ claim? What was the affirmative defense asserted by the defendants? How did the district court rule on this defense? How did the 5th Circuit rule on appeal? Why?

Mitchell Bros. Film Group v. Cinema Adult Theater (5th Cir. 1979) Fifth Circuit held that district court erred in permitting an affirmative defense of obscenity under 1909 Act 1976 Act to continue to avoid content restrictions on copyrightability because this best promotes constitutional goal of encouraging creativity 1909 Act is constitutional in this regard. Writings need not promote science or the useful arts; it is Congress who must promote these ends.

Devils Films Inc. v. Nectar Video Did the S.D.N.Y. rule that obscenity was a valid defense to a copyright infringement action? How can this case be distinguished from Mitchell Brothers?

SUMMARY - COPYRIGHT IN OBSCENE WORKS There is no defense of “obscenity” or “unclean hands obscenity” to copyright infringement suits (Mitchell Bros.) However, in Devil’s Films, a district court in a different circuit found that it had equitable discretion to refuse a TRO application to seize obscene films in a copyright infringement action.

AUTHORSHIP 3 possible philosophical concepts of authorship: A. Conception of the work B. Execution of the Work C. Financing the Work Which does the Lindsay court choose? [REMEMBER: Copyright is a form of INTELLECTUAL PROPETY!]

Lindsay v. R.M.S. Titanic et al. Who is Lindsay? What is the allegdly copyrighted work? Did the S.D.N.Y. find that Lindsay was the author of the work under federal copyright law? Whose arguments don’t “hold water”? 

AUTHORSHIP 3 philosophical concepts: A. Conception of the work B. Execution of the Work C. Financing the Work The Andrien decision reflects the predominant view preferring A over B. However, according to the work made for hire doctrine, C may also be a crucial determinant of authorship

WORKS MADE FOR HIRE WHAT’S A WORK MADE FOR HIRE? See Copyright Act 1976 section 101 (difference between employee created works and specially commissioned works) Section 201(b) controversy over sound recordings as works made for hire. Law has now been “corrected”