Copyright II Class 4 Notes Law 507 | Intellectual Property | Spring 2004 Professor Wagner Copyright © R. Polk Wagner Last updated: 11/19/2015 1:12:27 AM

2 Today’s Agenda 1. The Idea/Expression Distinction 2.The Merger Doctrine 3.The “Useful Articles” Doctrine 4.Types of Works 5.Some Thoughts on Duration

3 Idea versus Expression 1.Why restrict copyrights to expression? 2.Distinguishing between ideas and expression: Baker v Selden (1879) oAre accounting forms really uncopyrightable? Always? oAre cookbooks copyrightable? oWhat if Selden had a patent on his system? Would this change the copyright analysis?

4 Idea versus Expression Key analysis: distinguishing idea from expression What in particular was uncopyrightable about Selden’s work? Consider the scope of protection (under ©) for: 1.The Selden Accounting System 2.Selden’s book explaining the accounting system 3.Selden’s forms for use with the accounting system

5 Idea versus Expression Key analysis: distinguishing idea from expression What in particular was uncopyrightable about Selden’s work? 3 categories of unprotected ideas: 1.Animating concepts 2.Principles or solutions 3.Building blocks of expression Consider why each of the above is on the list Consider Problem 4-3, p. 349: Are the forms copyrightable? Parts of them?

6 The Merger Doctrine Trigger: Limited way of Expressing Facts Morrissey v Procter & Gamble (1st Cir. 1967) Could P&G have written Rule 1 differently? (or... used the ideas, but not the precise phrases?) Of what relevance was P&G’s argument (accepted below) that it didn’t have access to M’s Rule 1? Is it true that there are limited ways of expressing facts?

7 The Merger Doctrine What should be done about historical research? How should historians protect their work? Is this a policy problem? The Scenes à Faire doctrine: Why avoid protecting ‘standard treatments’? oAre they similarly necessary to expression? If Friends has become the industry standard for showing relationships between young adults, has it lost its copyright?

8 The Useful Articles Doctrine Brandir Int’l v Cascade Pacific (2d Cir 1987)

9 The Useful Articles Doctrine Brandir Int’l v Cascade Pacific (2d Cir 1987)

10 The Useful Articles Doctrine Analysis of Useful Article Doctrine 1.Physical separability test 2.Conceptual separability test ‘temporal displacement’ primary use test Brandir majority: unifying functional and asthetic Brandir dissent: independent asthetic concept 3.Note on design patents 4.Note: applies only to “pictoral, graphic, and sculptural works”

11 Types of Works 1.Literary works 2.Pictorial, graphic, sculptural works 3.Architectural works 4.Dramatic, Pantomime, and Coreographic Works 5.Musical Works and Sound Recordings 6.Motion Pictures and A/V Works 7.Derivative works and compilations Roth Greeting Cards (1970) oArtwork: ©, but not infringed oText: not ©

12 Duration of Copyright 1909 Act: 56 total years (renewal at 28)1909 Act: 56 total years (renewal at 28) 1976 Act: Life of the author + 50 years; 75/100 for entity authors1976 Act: Life of the author + 50 years; 75/100 for entity authors 1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors Eldred v Reno: challenge of 1998 CTEA “limited times” as a limit on Congress oHistory & text suggests “limited” is interpreted by Congress 1st Amendment as requiring heightened scrutiny oNot unless “traditional” boundaries of © are altered

13 Next Class Copyright III The Rights of Copyright Owners