COPYRIGHT LAW : FALL 2006 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA October 4, 2006

WRAP UP Characters are copyrightable outside of the story in which they occur if (2d Cir., 7 th Cir.) they meet Nichols specificity test or (perhaps 9 th ) the Warner story being told test.

Gaiman v. McFarlane, 360 F.3d 644 (7 th Cir. 2004) (CB p. 265) Does this eradicate the “Story being told” test?

CAN GOVERNMENT WORKS BE COPYRIGHTED?

HUGE EXCEPTION TO COPYRIGHTABILITY: MANY GOVERNMENT WORKS

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.

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)

Works of State Governments Copyrightable? Banks v. Manchester (1888) (judicial opinions) Others?

Works of State Governments Copyrightable? Others? E.g. County of Suffolk, N.Y. v. First American Real Estate Solutions (2d Cir. 2001)

Privately Drafted Legislative Codes Can legislative codes that are privately drafted but later adopted by states as law be the subject of copyright? See Veeck v. SBCCI, Inc., (5 th Cir. en banc 2002)

OTHER PUBLIC POLICY ISSUES To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Does “to promote the Progress of Science and useful Arts” preclude copyrightability for obscene works?

OTHER PUBLIC POLICY ISSUES Does “to promote the Progress of Science and useful Arts” preclude copyrightability for obscene works? No - see Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5 th Cir. 1979) (no content based restriction in IP Clause)

COMPARE: TRADEMARKS Lanham Act s. 2(a) (15 U.S.C. s. 1052(a)): No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute...

Compare: Patents Doctrine of Moral Utility Juicy Whip v. Orange Bang, 185 F.3d 1364 (Fed.Cir.1999)

Compare: Patents Doctrine of Moral Utility – probably dead Juicy Whip v. Orange Bang, 185 F.3d 1364 (Fed.Cir.1999) (invention with deceptive purpose could still satisfy utility requiement)