COPYRIGHT LAW FALL 2006 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA Class 7: September 13, 2006

WRAP-UP: exclusion for functional aspects of works Baker v. Selden – Idea-expression dichotomy; additional doctrine that copying for purposes of use as opposed to explanation cannot be copyright infringement Blank form rule: according to Nimmer, bad law.

17 U.S.C. 113(b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.

Blank Forms What is the blank form rule in Copyright Office Regulation 202.1(c)?

The Blank Forms Rule (see Supp 243) Copyright Office Regulation 202.1(c): The following are examples of works not subject to copyright... Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information. Is this good law?

Bibbero Systems, Inc. v. Colwell Systems, Inc. (9 th Cir. 1990) CB p. 106 Copyrightability of medical superbill Court says it is “required to examine the scope of the blank forms rule.”

Bibbero Systems, Inc. v. Colwell Systems, Inc. (9 th Cir. 1990) CB p. 106 Copyrightability of medical superbill According to the Ninth Circuit, did the blank form convey information? Did the “text with forms” exception apply?

Criticism of Bibbero Second Circuit in Kregos v. Associated Press, 937 F2d. 700 (2d Cir. 1991) (copyrightability of pitching form)

Morrissey v. Procter & Gamble, 379 F.2d 675 (1 st Cir. 1967) Was the defendant liable for copyright infringement? Why or why not?

Morrissey v. Procter & Gamble, 379 F.2d 675 (1 st Cir. 1967) Was the defendant liable for copyright infringement? Why or why not? Merger doctrine (extension of Baker)

COPYRIGHTABILITY OF INSTRUCTIONS E.g. operating manual for a digital camera

COPYRIGHTABILITY OF RECIPE Julia Grownup perfects a recipe for pumpkin pie. She writes down the ingredients and a straightforward set of instructions for making the dish using standard terms/style for recipe writers. Emeril copies her recipe verbatim in his bestselling cookbook. Can she win a copyright infringement case?

LEGAL FORMS: COPYRIGHTABLE? See Continental Casualty Co. v. Beardsley, 253 F.2d 701 (2d Cir.), cert. denied, 358 U.S. 816 (1958) (CB p. 105)

The Blank Forms Rule (see Supp 243) Copyright Office Regulation 202.1(c): The following are examples of works not subject to copyright... Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.

COPYRIGHT IN FACTUAL NARRATIVES To what extent are facts copyrightable?

COPYRIGHT OFFICE REGULATION: No protection in W]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources. (202.1(d))

COPYRIGHTABILITY OF FACTS Feist addressed this problem: How should we reconcile the following “well- established propositions 1. Idea/Expression Dichotomy and 2. Statutory copyright protection for compilations in Copyright Act

103(a) The subject matter of copyright as specified by s. 102 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.

103(b) The copyright in a compilation or derivative work extends only to the matter 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.

DEFINITION OF COMPILATION AT S. 101 A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation:” includes collective works.

FEIST “Thin” Copyright Protection for compilations “Sweat of the brow doctrine”

Zapruder Film Copyrightable?

Nash v. CBS CB p. 124 Extent of Copyright in historical facts? Extent of Copyright in interpretation of historical facts?

John Dillinger photos Lady in Red (left) Biograph (below)

What about historical novels? E.g. Barbara Chase- Riboud, Sally Hemings (see Burgess v. Chase- Riboud, 765 F. Supp. 233 (E.D. Pa. 1991) Fawn Brodie’s biography Allegedly infringing play, Dusky Sally

Protection for Factual Research? Does Feist sing the swan song for the “judicial ugly duckling” of Toksvig?

Wainwright Securities CB p. 133 Copyright protection of news events? Overprotection?

Invented Facts Can a phone number be copyrightable?