1. Class 2 Copyright, Autumn, 2016 Copying
9/17/2018
Class 2 Copyright, Autumn, Copying
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. 9/17/2018
“That any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photographs or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns,”
September 17, 2018
1870 Copyright Act: 2nd General Revision

3. 9/17/2018
“shall, upon complying with the provisions of this act, have the full liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works.”
September 17, 2018
1870 Copyright Act: 2nd General Revision

4. 9/17/2018
“Any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, without the consent of the proprietor of said dramatic or musical composition, or his heirs or assigns, shall be liable for damages therefor …”
September 17, 2018
1897 Act Amendments

5. Not Really Copying Says the Court in White-Smith
9/17/2018
Not Really Copying
Says the Court in White-Smith
“What is meant by a copy? … It may be true that in a broad sense a mechanical instrument which reproduces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard.”
September 17, 2018

6. 9/17/2018
Not Really Copying
“These musical tones are not a copy which appeals to the eye. In no sense can musical sounds which reach us through the sense of hearing be said to be copies, as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration. …”
September 17, 2018

7. The Statute Protects Things, Not Works
9/17/2018
The Statute Protects Things, Not Works
“The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing, against the publication and duplication of which it is the purpose of the statute to protect the composer.”
September 17, 2018

8. How Should We Approach Copies and Copying?
9/17/2018
How Should We Approach Copies and Copying?
1870 Statute Doesn’t Separate Work and Physical Object
This is the Court’s point about not offering protection for the “intellectual conception apart from the thing produced.”
September 17, 2018

9. Is Copying About Literal reproduction? Functional reproduction?
9/17/2018
Is Copying About
Literal reproduction?
Star Trek replicator-like requirement: the copy must look like the original?
Functional reproduction?
Music compositions were played on pianos, and so are piano rolls
Piano rolls therefore substitute for music sheets and therefore are copies?
September 17, 2018

10. 9/17/2018
“§1 Exclusive Rights as to Copyrighted Works. Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work; ”
September 17, 2018
1909 Copyright Act

11. 101: “Fixed” A work is “fixed” in a tangible medium of expression
9/17/2018
101: “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.
September 17, 2018

12. Legislative History on Fixation
9/17/2018
Legislative History on Fixation
Overruling White-Smith
As a basic condition of copyright protection, the bill perpetuates the existing requirement that work be fixed in a “tangible medium of expression,” and adds that this medium may be one “now known or later developed,” and that the fixation is sufficient if the work “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
September 17, 2018

13. Legislative History on Fixation
9/17/2018
Legislative History on Fixation
“This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) …”
September 17, 2018

14. Rogers’s Puppies Scanlon Hires Rogers to Photograph Puppies
9/17/2018
Rogers’s Puppies
Scanlon Hires Rogers to Photograph Puppies
Rogers is paid $200 for prints by the Scanlons
Rogers did the creative work in figuring out how to do the picture
Rogers retained the copyright to the work
September 17, 2018

15. Rogers’s Puppies Rogers Licenses Work to Museum Graphics
9/17/2018
Rogers’s Puppies
Rogers Licenses Work to Museum Graphics
5,000 notecards printed initially
Subsequent printings
September 17, 2018

16. Creating “String of Puppies”
9/17/2018
Creating “String of Puppies”
1988 Banality Exhibition at Sonnabend Gallery
Koons looking create a group of art works
Selects studios to do physical work of creating pieces
Buys notecard of Puppies
Tears off copyright notice and gives it executing artisans
September 17, 2018

17. Authorship? Not discussed here but note …
9/17/2018
Authorship?
Not discussed here but note …
Koons as animating creative force vs. artisans who actually build the thing in question
One author? Koons or the artisans? Joint authors?
September 17, 2018

18. September 17, 2018
(1-9-14)

19. 9/17/2018
The Lawsuit
Facts
Koons sells three copies of String of Puppies for $367,000
Keeps fourth copy for himself
Friend of Scanlon sees picture of Koon’s work in LA Times, who in turn tells Rogers
Rogers sues for infringement
September 17, 2018

20. What Counts as a Copy? Hypo 1
9/17/2018
What Counts as a Copy?
Hypo 1
I take a picture of Stonehenge
Ignore fact is in UK
You see my picture and are inspired by it
You fly to Stonehenge and take another picture of it
I sue you for copyright infringement: who wins?
September 17, 2018

21. Answer We both get copyrights in our photographs
9/17/2018
Answer
We both get copyrights in our photographs
There is no copyright infringement (see Skyy)
September 17, 2018

22. What Counts as a Copy? Hypo 2
9/17/2018
What Counts as a Copy?
Hypo 2
Again, I take a picture and again, you see it
You say: “I could fly to Stonehenge to take a picture or I could Xerox this one.”
You copy it
I sue you for copyright infringement: who wins?
September 17, 2018

23. 9/17/2018
Answer
Simple copyright infringement
September 17, 2018

24. What Counts as a Copy? Hypo 3
9/17/2018
What Counts as a Copy?
Hypo 3
I take a picture of Stonehenge
You see my picture and are inspired by it
You fly to Stonehenge and make a miniature model of it out of clay
I sue you for copyright infringement: who wins?
September 17, 2018

25. 9/17/2018
Answer
No infringement
September 17, 2018

26. What Counts as a Copy? Hypo 4
9/17/2018
What Counts as a Copy?
Hypo 4
I take picture of Stonehenge, you see it.
You decide to make a miniature model of Stonehenge out of clay
Working from my picture, you build your model of Stonehenge
I sue you for copyright infringement: who wins?
September 17, 2018

27. Answer Tricky? No infringement?
9/17/2018
Answer
Tricky?
No infringement?
Sculpted work won’t preserve lighting, camera angles
Should just re-create the original object built by the Druids
September 17, 2018

28. Answer Tricky Infringement?: Holmes’s Statement in Bleistein
9/17/2018
Answer
Tricky
Infringement?: Holmes’s Statement in Bleistein
“Others are free to copy the original. They are not free to copy the copy.”
Implementing Holmes
Does the mini-Stonehenge made from looking at my photo copy the copy or copy the original?
September 17, 2018

29. Copying the Work v. Accessing the Original
9/17/2018
Copying the Work v. Accessing the Original
What limits how a subsequent user can access the original?
Do I have to go directly to the original or can I access the original through someone else’s work?
September 17, 2018

30. Why Not This? Mini-Stonehenge obviously not a copy because
9/17/2018
Why Not This?
Mini-Stonehenge obviously not a copy because
Photo was just two-dimensional image of Stonehenge
Mini-Stonehenge is 3D form
Change in dimensionality precludes copying?
September 17, 2018

31. Now Rogers v. Koons Should we say …
9/17/2018
Now Rogers v. Koons
Should we say …
Koons was just accessing original through the photograph ala the mini-Stonehenge example
Koons also switched the dimensonality
Ergo no copying of copy, just 3D implementation of original accessed through the photo?
September 17, 2018

32. No Independent Original Here
9/17/2018
No Independent Original Here
Stonehenge Exists Separately
I didn’t create Stonehenge when I took a picture of it; it existed already
September 17, 2018

33. No Independent Original Here
9/17/2018
No Independent Original Here
Rogers Created Puppies ala Burrow-Giles
“It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger’s expression of this idea—as caught in the placement, in the particular light, and in the expressions of the subjects—that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.”
September 17, 2018

34. What Could Koons Have Used?
9/17/2018
What Could Koons Have Used?
The Idea Behind Puppies
“… had appellant simply used the idea presented by the photo, there would not have been infringing copying … “
September 17, 2018

35. September 17, 2018

36. Ets-Hokin v. Skyy Start with the Contract
9/17/2018
Ets-Hokin v. Skyy
Start with the Contract
What did the contract look like?
What choices were available?
Why does that matter?
September 17, 2018

37. Ets-Hokin v. Skyy Key Questions
9/17/2018
Ets-Hokin v. Skyy
Key Questions
Does JEH have a copyright in the photographs that he took?
Are they sufficiently original?
Are they impermissible derivative works of the Skyy vodka bottle? [not today]
September 17, 2018

38. Ets-Hokin v. Skyy Key Questions
9/17/2018
Ets-Hokin v. Skyy
Key Questions
Do the new photographs of the Skyy vodka bottle infringe JEH’s photographs?
What result should we reach?
What are the copyright tools to get there?
September 17, 2018

39. The Nelson Dissent Per Judge Nelson
“The majority opinion errs in reversing the district court’s summary judgment order because there is no way that Ets-Hokin can prove infringement given the low standard of originality for photographs. I agree with the majority opinion that under this standard that Ets-Hokin’s photographs are original.”
September 17, 2018

40. The Nelson Dissent Per Judge Nelson
“By the same token, however, so are the other allegedly infringing photographs of Skyy’s vodka bottle.”
September 17, 2018

41. The 2003 Opinion: Merger and Scenes a Faire
Per the Court
“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression ‘merge.’ Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea....”
September 17, 2018

42. The 2003 Opinion: Merger and Scenes a Faire
Per the Court
“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression ‘merge.’”
September 17, 2018

43. The 2003 Opinion: Merger and Scenes a Faire
Per the Court
“Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea....”
September 17, 2018