1. Copyright Law – Ronald W. Staudt
Class 4
February 2, 2009

2. Recap: Distinctions Patents, Trademarks & Chattels
Bell v. Catalda- patent distinctions
Trademark distinctions and overlap
Trademark Cases
Warne
Dastar
Chattels - Forward v. Thorogood – to do today

3. Today: Original Works of Authorship
Sect. 102
Originality
Feist & Acuff-Rose v. Jostens
Magic Marketing
Sebastian Int’l
Questions p. 82
Fixation
Copies and Phonorecords
Digital Media
Questions p
Supp Sect. 1101

4. Forward v. Thorogood
Ownership of the chattel v. ownership of the © in the underlying work
Section 202
Section 109

5. § 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.
Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object;
nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

6. § 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

7. Sec. 102. Subject matter of copyright: In general
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

8. Feist on Originality
The sine qua non of copyright is originality..Originality means that the work was independently created by the author (as opposed to copied from some other works) and it possesses some minimal degree of creativity…the requisite level of creativity is extremely low…Originality does not signify novelty… Originality is a constitutional requirement.

9. Originality and Copying:
Acuff-Rose v. Jostens, 155 F3d 140 (2d Cir. 1988)
LEXSEE® 155 F.3d 140
If a copyrighted work that is independently created by a party is copied by another party, there is an infringement of the copyright, regardless of whether other independent, and legitimate uses of the same material exist. See id. at 346 (noting that if "two poets, each ignorant of the other, compose identical poems [then n]either work is novel, yet both are original and, hence, copyrightable"); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951) …("It makes no difference how far the [copyrighted work] was anticipated by works in the public demesne which the plaintiffs did not use."), aff'd, 309 U.S. 390, 84 L. Ed. 825, 60 S. Ct. 681 (1940).

10. Referring to these prior uses of the saying, the district court decided that … the lines in Acuff-Rose's song lacked the requisite originality to warrant protection, in effect finding that, given the widespread popular usage of the phrase, William Brock most likely did not independently create the lyric lines of Acuff-Rose's song. Acuff-Rose contends that the record before the district court is insufficient to warrant a determination that William Brock did not come up with the phrase entirely on his own. To support its argument of independent creation, Acuff-Rose had proffered to the district court: (1) a letter, dated July 2, 1996, from William Brock to Buddy Brock in which William asserts that "the lyric lines, YOU'VE GOT TO STAND FOR SOMETHING OR YOU'LL FALL FOR ANYTHING' are original with me"; and (2) a supplemental copyright registration, filed by Acuff-Rose on June 20, 1996, adding William Brock as an author to the song. Both of these constitute some evidence that Brock thought he had come up with the words on his own. But the district court reasonably concluded that the prior usage of the saying was sufficiently widespread as to make it exceedingly unlikely -- whatever Brock believed -- that Brock had, in fact, independently created the phrase.

11. PRIORITY MESSAGE: CONTENTS REQUIRE IMMEDIATE ATTENTION
Magic Marketing v. Mailing Services of Pittsburgh
PRIORITY MESSAGE: CONTENTS REQUIRE IMMEDIATE ATTENTION
TELEGRAM

12. © Ins & Outs "fragmentary words and phrases"
forms of expression dictated solely by functional considerations
Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents
CFR Title 37, Sect

13. © Ins & Outs
cliched language and expressions communicating an idea which may only be conveyed in a more or less stereotyped manner
more colorful descriptions, such as advertising slogans-"most personal sort of deodorant"
serving directions on a frozen dessert package
label was copyrightable when it contained such phrases as "Cut to desired length Will not run

14. © Ins & Outs direction or instruction for use
serving directions on a frozen dessert package
expressions such as "hang in there"
Hair stays wet-looking as long as you like. Brushes out to full-bodied dry look. WET 4 is one step-four choice (finishing) in Sebastian's four step program for a healthy scalp and head of hair. WET is not oily, won't flake and keeps hair wet-looking for hours, allowing you to sculpture, contour, wave or curl. It stays looking wet until it's brushed out. When brushed, hair looks and feels thicker, extra full. Try brushing partly, leaving some parts wet for a different look

15. © Ins & Outs Hugga-hugga, brrr Uh-oh x 4 Solid black stripes
listing of the contents of an envelope or package

16. © Ins & Outs
Arrows
???? P. 82?

17. Fixed in any tangible medium of expression
Copy or phonorecord
RAM “fixation”
Questions pp
Section 1101

18. Copies & Phonorecords
''Copies'' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.
''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed.

19. Fixed
A work is ''fixed'' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ''fixed'' for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

20. Sec. 1101. Unauthorized fixation and trafficking in sound recordings and music videos
(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved -
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

21. Is 1101 Constitutional?
Moghadam and KISS Catalog and Martignon–Congress has power under the Commerce Clause to protect “unfixed” works.
KISS’s earlier, now withdrawn opinion, and Martignon below, now overruled, to the contrary.