1. Law 507 | Intellectual Property | Spring 2003
Copyright II
Class Notes: January 24, 2003
Law 507 | Intellectual Property | Spring 2003
Professor Wagner

2. Today’s Agenda The Idea/Expression Distinction The Merger Doctrine
The “Useful Articles” Doctrine
Types of Works
Some Thoughts on Duration
1/24/03
Law 507 | Spring 2003

3. Idea versus Expression
Why restrict copyrights to expression?
Distinguishing between ideas and expression:
Baker v Selden (1879)
Are accounting forms really uncopyrightable? Always?
Are cookbooks copyrightable?
What if Selden had a patent on his system? Would this change the copyright analysis?
1/24/03
Law 507 | Spring 2003

4. Idea versus Expression
Key analysis: distinguishing idea from expression
What in particular was uncopyrightable about Selden’s work?
1/24/03
Law 507 | Spring 2003

5. Idea versus Expression
Key analysis: distinguishing idea from expression
What in particular was uncopyrightable about Selden’s work?
3 categories of unprotected ideas:
Animating concepts
Principles or solutions
Building blocks of expression
Consider Problem 4-3:
Are the forms copyrightable? Parts of them?
1/24/03
Law 507 | Spring 2003

6. Trigger: Limited way of Expressing Facts
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?
1/24/03
Law 507 | Spring 2003

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’?
Are they similarly necessary to expression?
If Friends has become the industry standard for showing relationships between young adults, has it lost its copyright?
1/24/03
Law 507 | Spring 2003

8. The Useful Articles Doctrine
Brandir Int’l v Cascade Pacific (2d Cir 1987)
1/24/03
Law 507 | Spring 2003

9. The Useful Articles Doctrine
Brandir Int’l v Cascade Pacific (2d Cir 1987)
1/24/03
Law 507 | Spring 2003

10. The Useful Articles Doctrine
Analysis of Useful Article Doctrine
Physical separability test
Conceptual separability test
‘temporal displacement’
primary use test
Brandir majority: unifying functional and asthetic
Brandir dissent: independent asthetic concept
Note on design patents
Note: applies only to “pictoral graphic, and sculptural works”
1/24/03
Law 507 | Spring 2003

11. The Useful Articles Doctrine
Analysis of Useful Article Doctrine
Physical separability test
Conceptual separability test
‘temporal displacement’
primary use test
Brandir majority: unifying functional and asthetic
Brandir dissent: independent asthetic concept
Note on design patents
Note: applies only to “pictoral graphic, and sculptural works”
1/24/03
Law 507 | Spring 2003

12. Types of Works Literary works Pictorial, graphic, sculptural works
Architectural works
Dramatic, Pantomime, and Coreographic Works
Musical Works and Sound Recordings
Motion Pictures and A/V Works
Derivative works and compilations
Roth Greeting Cards (1970)
Artwork: ©, but not infringed
Text: not ©
1/24/03
Law 507 | Spring 2003

13. Duration of Copyright 1909 Act: 56 total years (renewal at 28)
1976 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 authors
Eldred v Reno: challenge of 1998 CTEA
“limited times” as a limit on Congress
History & text suggests “limited” is interpreted by Congress
1st Amendment as requiring heightened scrutiny
Not unless “traditional” boundaries of © are altered
1/24/03
Law 507 | Spring 2003

14. The Rights of Copyright Owners
Next Class
Copyright III
The Rights of Copyright Owners
1/24/03
Law 507 | Spring 2003