Idea/Expression Dichotomy 17 U.S.C 102 (b) Limits SCOPE I/E dichotomy at crux of balance between producers and consumers You CANNOT copyright ideas, JUST expressions of ideas Other people can use your ideas, just not their expressions Ideas can be protected via patent, contract law or trade secrets Merger doctrine: if idea and expression are inseparable (only one way to express idea, i.e. algorithm or game rules), generally it cannot be copyrighted because they have merged

Buchwald v. ParamountBuchwald v. Paramount (1990) Breach of contract Art Buchwald pitched treatment to Paramount in 1982; script development failed Warner optioned treatment in 1986; dropped because Paramount was in development Murphy/Landis wrote Coming to America (1988)

Siva, Chapter 3 Early film industry; standardization Edison Trust and patent wars Move from patent to copyright prioritization Historical shift from “copyright poor to copyright rich” Derivative works in film: making books or plays into feature films...whose right? Idea/expression in derivative films

Siva Concludes... Copyright “formula” that acknowledges that all new works are built on old, but that also encourages creativity in different media...a balance. “But because twentieth-century copyright law has been a battle of strong interested parties seeking to control a market, not a concerted effort to maximize creativity and content for the benefit of the public, we have lost sight of such a formula along the way” (p. 116).

Copyright Act of ) work must be published and 2) must have © Codified corporate authorship (juristic author aka “work for hire”) – After this, most “authors” became corporations Scope: mechanical reproductions/compulsory mechanical license (piano rolls, but eventually cover versions w/out permission) The Townsend Amendment of 1912: Motion pictures get protection – Protected filmmakers against piracy, but not “ideas” in the films

Let’s Learn From Disney

5 Exclusive Rights 17 U.S.C ) Reproduce the work (make copies) 2) Prepare derivatives (translations, appear in other media, sample, sync with media, etc.) 3) Distribute copies by sale, rental, lease, etc. 4) To perform the work publicly 5) To display the work publicly

DURATION 1790 Act: 14 years, renewable Act: 28 years, renewable 14 (public performance of music compositions) 1909 Act: 28 years, renewable Act: Life of author plus 50 years; 75 years for corporations 1998, Copyright Term Extension Act: Life of author plus 70 years; 95 years for corporations

Why All this Amending?

Copyright Act of 1976 Codified Fair Use (17 U.S.C. 107); Didn't kick in until 1978 Codified Idea/Expression Dichotomy (17 U.S.C. 102 (b)) First time sound recordings received federal copyright protection in Act Fixed term of life + 50 or 75 years; before was renewal terms No ©opyright registration w/ Copyright Office Works do not need to be published, just fixed

Digital Millennium Copyright Act DMCA, 1998 “Safe Harbor” for online service providers – Cannot sue YouTube for user's videos if taken down – 17 U.S.C. 512 Criminalizes technology that circumvents DRM Viacom International Inc. v. YouTube, Inc. (2010) Viacom International Inc. v. YouTube, Inc. (2010) Viacom sues for $1B; court rules in favor of Google under “safe harbor” provision of DMCA

Lenz v. Universal Music CorpLenz v. Universal Music Corp (2007) The video Lenz sent a DMCA “takedown notice” from UMG She claimed “fair use”; sued, court ruled in her favor Sig: copyright owners must consider fair use before sending takedown notice

The Fair Use Test 17 U.S.C. 107 Commentary, Criticism, Education/Scholarship: a balancing “test” –Purpose and character: enrichment/profit –Nature of original work: Factual/creative, published? –Amount copied/Substantiality or importance to original –Market effect or harm on original What IS really fair use???

Copyright Term Extension Act (1998) 1998, Sonny Bono Copyright Term Extension Act Mickey Mouse Protection Act Sonny Bono Act Added 20 years term duration 2019, most works enter PD Eldred v. Ashcroft (2003) Eldred v. Ashcroft – Challenged constitutionality of CTEA

Disney $6.3 Million to lobby for CTEA 1998 (Dr. Seuss, Frost, Gershwin) MPAA and RIAA lobbied on behalf of members Mickey 2003; Pluto 2005; Goofy 2007; Donald 2009

Disney © reativity

Disney © reativity © ont’d