COPYRIGHT LAW SPRING 2003: CLASS 4 Professor Fischer Originality and the Idea Expression Dichotomy January 15, 2003

TODAY’S CLASS Announcement: U.S. Supreme Court rejects constitutional challenge to Sonny Bono Copyright Term Extension Act constitutional (7-2) Wrap-up (fixation, treaties) A few more words on fixation and the anti- bootlegging provisions The originality requirement The idea-expression dichotomy (if we have time)

WRAP-UP: INTERNATIONAL TREATY REGIME Berne Convention TRIPS Agreement WIPO Copyright Treaty WIPO Performances and Phonograms Treaty

WRAP UP: FIXATION Fixation is required for a work to be copyrightable It is a constitutional requirement - a work must be a “writing” to be copyrightable Fixation requirement is broadly worded and technology-neutral 2 specific provisions designed to solve problems arising from technology-neutral broad fixation provision: Specific fixation provision to protect live broadcasts (of things that are not writings) in s. 101 (otherwise would not be fixed); Explicit federal protection for unfixed works in anti- bootlegging legislation in s. 1101

Bootleg Recordings and the Protection of Live Performances: A Problem of Statutory Construction Problem – if a live performance is not being “transmitted” but is being simultaneously recorded, the Copyright Act does not appear to treat this performance as being fixed – though maybe it falls withiin the first sentence of the statutory definition of fixation in s. 101 It appears (at least according to Nimmer) that this is an example of Congress legislating more narrowly than the Constitution would permit

ANTI-BOOTLEGGING PROVISIONS A solution to the statutory construction problem in the definition of fixation arising from broadly drafted technology-neutral fixation provisions Title 17 s Grew out of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) (part of WTO GATT) and became law by operation of the 1994 Uruguay Round Agreements Act (requires fixation for live musical performances) Is it constitutional (see U.S. v. Moghadam (11th Cir. 1999)? Why or why not? Is this decision inevitable?

TODAY: MORE ON COPYRIGHTABLE SUBJECT MATTER -- ORIGINALITY Neither Berne nor TRIPS expressly require originality though they assume some kind of authorship 1976 Act’s originality requirement is at 17 U.S.C. §102(a) Before we consider it, we will examine 3 significant early copyright law cases that dealt with originality

THREE IMPORTANT EARLY COPYRIGHT LAW CASES 1. Burrow-Giles Lithographic Society v. Sarony (1884) - CB p Bleistein v. Donaldson Lithographic Co. (1903) - CB p J. Alfred Bell & Co. v. Catalda (2d Cir. 1951) - CB p. 85

Burrow-Giles Lithographic Society v. Sarony (1884) Who was Napoleon Sarony, the plaintiff? What is lithography? What were the 2 important constitutional questions on which the Supreme Court had to rule in this case?

Some other Photos by Napoleon Sarony

Copyright in Snapshots Is this snapshot of my dogs sufficiently original to be copyrightable? Does it matter whether my goal was to produce a likeness of my dogs as a keepsake? What if I just set the camera up to take pictures at 10 minute intervals and it took this picture, among others? What if I decided to take a photo for use on a Christmas card so I put the holiday scarves on the dogs?

Bleistein v. Donaldson Lithographing Co. (1903) Justice Oliver Wendell Holmes - an unsuccessful copyright plaintiff What was the issue that Holmes had to decide in this case? Is Bleistein’s ruling on the amount of originality required for copyrightability consistent with Burrow-Giles? With the Patent and Copyright clause? What is the Bleistein non- discrimination principle? Do you agree with it?

“Writings” Is a graphic nonverbal representation a constitutional writing? What about a sound recording? Does the reference to “visible expression” in Burrow Giles indicate that these are not writings? What about a technology that captures smells so that they can be perceived by motion picture audiences? Could the recorded smells be constitutional writings?

An added wrinkle for the originality requirement: copies of public domain works Who were the plaintiffs in Alfred Bell & Co. v. Catalda (2d Cir. 1951)? What did they seek copyright protection for? Were the works copyrightable, according to Justice Frank? Do you agree? Why or why not? Is Bridgeman Art Library v. Corel Corp. (CB p. 87) consistent with Bell v. Catalda? Why or why not?

1976 Act on copyrightability Does the 1976 Act, like the 1909 Act, protect “writings of an author”? No - “Original works of authorship” (17 U.S.C. § 102(a)) Why use narrower language than the Constitution? What is the latest Supreme Court interpretation of section 102?

Feist on originality (2d Cir. 1991) (CB p. 76) The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author... Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity... 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.

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 under the 1976 Copyright Act?

Learned Hand “...[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)

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’s painting copyrightable under the 1976 Copyright Act?

General Trend for Originality The courts over the years have progressively lowered both the statutory and constitutional standards for originality. Although Congress did not want the language in §102 to be coextensive with Art. 1 s. 8 cl. 8 of the Constitution, these standards have converged.