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

2. Constitution The Congress shall have the Power . . .
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Constitution
The Congress shall have the Power . . .
To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
(Art. I, § 8, cl. 8)
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3. Piece of Paper No. 1 Copyright Magic: The Blank Paper and the Pen
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Piece of Paper No. 1
Copyright Magic: The Blank Paper and the Pen
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4. Blank Piece of Paper Laws
Starting Questions
What are the laws that apply to blank pieces of paper?
What happens if a copyrighted work is created on a blank piece of paper?
How does that change the applicable laws?
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5. 102. Subject matter of copyright: In general
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102. Subject matter of copyright: In general
(a)
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.
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6. 102(a) (Cont.) Works of authorship include the following categories:
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102(a) (Cont.)
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;
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7. 102(a) (Cont.) (5) pictorial, graphic, and sculptural works;
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102(a) (Cont.)
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
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8. 9/17/2018
102 (Cont.)
(b)
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
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9. 101: “Fixed” A work is “fixed” in a tangible medium of expression
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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.
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10. Use v. Access Copyright is Copyright isn’t
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Use v. Access
Copyright is
mainly about use rules, assuming legitimate access
Copyright isn’t
a regime for creating access rights
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11. Use v. Access Key Use v. Access Point
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Use v. Access
Key Use v. Access Point
The fact that copyright now applies to the poem on the piece of formerly-blank paper doesn’t alter usually the underlying physical property rules that apply to the piece of paper (or, more generally, any other physical object in which a copyrighted work is embodied)
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12. Do I Have a Copyright in the Poem?
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Do I Have a Copyright in the Poem?
Yes
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression
Poem should qualify as OWA
But how do we know it is original?
Paper should quality as TME
Writing will fix the OWA in a TME
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13. Copyright “Originality”
Original to me and not copied from preexisting work
Copyright doesn’t ask how good the work is
And it doesn’t ask whether someone else has created the same work before so long as I didn’t copy my work from them
Copyright quite different from patents in that way
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14. Copyright “Originality”
Copyright as source rule
Key to copyrightability of my poem is that it is original to me and not copied from somewhere else and that it has some minimum level of creativity
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15. Don’t Need © No Formalities Required
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Don’t Need ©
No Formalities Required
Don’t need © or something like that
But can (see ) and has advantages (see, for example, 401(d))
This came into effect in the U.S. with our entry into the Berne Convention as of March 1, 1989
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16. 9/17/2018
Don’t Need to Register
Don’t need to register the work with the government
But can (see ) and necessary to sue for copyright infringement (see 411); also matters for availability of statutory damages
Very different from patents
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17. Don’t Need to Deposit with Library of Congress
17 U.S.C. 407(a) [last sentence]
“Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection.”

18. Getting the Terms Right
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Getting the Terms Right
Physical Objects v. Works
Is the piece of paper with the poem on it the work?
If not, what is the work?
Copies vs. Originals
Is the single piece of paper on which the poem is written a copy?
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19. 9/17/2018
101: Literary Works
“Literary works” are works, other than audiovisual works,
expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
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20. 9/17/2018
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.
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21. 9/17/2018
202 (Cont.)
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.
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22. 9/17/2018
101: Copies
“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.
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23. 9/17/2018
101: Copies
“Copies” are
The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
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24. 106. Exclusive rights in copyrighted works
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106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
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25. 9/17/2018
106 (Cont.)
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
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26. 9/17/2018
106 (Cont.)
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
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27. 201: Ownership of copyright
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201: Ownership of copyright
(a) Initial Ownership.
Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
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28. Piece of Paper No. 2: Going to the Store?
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Piece of Paper No. 2: Going to the Store?
A Second Writing
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29. 9/17/2018
Piece of Paper No. 3
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30. Compilations and Collective Works
Statute
See 101 definitions
103
201(c)
404

31. 9/17/2018
Piece of Paper No. 4
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32. SFMOMA.org: Marcel Duchamp, Fountain, 1917
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Source:
SFMOMA.org: Marcel Duchamp, Fountain, 1917
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33. Saatchi Gallery: Tracey Emin, My Bed, 1998
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Saatchi Gallery: Tracey Emin, My Bed, 1998
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34. calder.org September 17, 2018 9/17/2018
Source:
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calder.org

35. 101: “Pictorial, graphic, and sculptural works”
“Include
two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”
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36. 101: “Pictorial, graphic, and sculptural works”
“Include
two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
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37. 101: “Pictorial, graphic, and sculptural works”
“Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that,”
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38. 101: “Pictorial, graphic, and sculptural works”
“such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
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39. One Balloon
???
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40. Christie’s Auction Announcement (Nov. 2013)
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Source:
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Christie’s Auction Announcement (Nov. 2013)

41. Time Magazine, 14 Nov 2013 September 17, 2018 9/17/2018
Source:
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Time Magazine, 14 Nov 2013

42. techdirt, 6 Jan 2011 September 17, 2018 9/17/2018
Source:
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techdirt, 6 Jan 2011

43. Piece of Paper No. 5

44. Burrow-Giles Lithographic Co. v. Sarony
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Burrow-Giles Lithographic Co. v. Sarony
111 U.S. 53 (1884)
Searching for Oscar Wilde No. 18
Photo taken in the U.S. in 1882
Napoleon Sarony, photographer, died on Nov. 9, 1896
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45. September 17, 2018
copyright.cornell.edu

46. September 17, 2018
Library of Congress

47. 9/17/2018
Oscar Wilde by Sarony, 1882
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48. 9/17/2018
Oscar Wilde by Sarony, 1882
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49. 9/17/2018
“That the provisions of said act shall extend to and include photographs and the negatives thereof which shall hereafter be made, and shall enure to the benefit of the authors of the same in the same manner, and to the same extent, and upon the same conditions as to the authors of prints and engravings.”
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1865 Copyright Act: Photography

50. The Key Questions in Burrow-Giles
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The Key Questions in Burrow-Giles
How does a new device—the camera producing photographs—match with the Constitution’s focus on Authors and Writings?
What conception of authorship will make possible a copyrighted work from such a device?
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51. What is our focus? The mechanical device?
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What is our focus?
The mechanical device?
The quill pen and the ink?
The printing press?
The paint brush and the canvas?
The camera?
Are some mechanical devices within the Constitution and others outside it?
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52. What is our focus? The role of the author in creating the work?
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What is our focus?
The role of the author in creating the work?
For manuscripts, the direct link between the brain and the hand doing the writing?
For the printing press, the movement from the manuscript authored as above to the books produced by the press?
For the camera, pushing a button?
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53. What counts as an original photograph?
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What counts as an original photograph?
Third Finding of Fact Below
OW No. 18 is a “useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same … entirely from his own original conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said”
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54. What counts as an original photograph?
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What counts as an original photograph?
Third Finding of Fact Below
“photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.”
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55. Did Sarony Create OW No. 18? Says the Court
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Did Sarony Create OW No. 18?
Says the Court
“These findings, we think, show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell … .”
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56. The Work vs. The Copy Hypo
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The Work vs. The Copy
Hypo
Sarony has Wilde pose just so; adjusts lights and camera angle for perfect picture
Presses button to take picture
Later discovers that there was no film in the camera
Did Sarony create a “an original work of authorship?” Does he have a copyright?
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57. The Work vs. The Copy Section 102(a) Concepts Key
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The Work vs. The Copy
Section 102(a) Concepts Key
Original work of authorship can exist independent of any medium of fixation
Sarony created the full OWA before he pressed the button
OWA exists independent of whether there is film in the camera
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58. The Work vs. The Copy But Need Film for Copyright
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The Work vs. The Copy
But Need Film for Copyright
But no (federal) copyright without fixation of the OWA
That is what 102(a) tells us
State law may provide rights for unfixed OWAs (see 301(b)(1))
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59. What counts as an original photograph?
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What counts as an original photograph?
What about a picture of the Grand Canyon? Unposed pictures at a birthday party?
“This may be true in regard to the ordinary production of a photograph, and, further, that in such case a copyright is no protection. On the question as thus stated we decide nothing.”
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60. Bleistein v. Donaldson Lithographing Co.
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Bleistein v. Donaldson Lithographing Co.
188 US 239 (1903)
Circus Advertising
Circus advertising key early form of advertising
Circuses advertised by “billers” who could cover 7,000 square feet a day with ads
Source: Zimmerman in Intellectual Property Stories
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61. 9/17/2018
[Circus poster]
Source:
Source: Edward Samuels, The Illustrated Story of Copyright
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62. Why Shouldn’t We Reject Copyright in Advertising?
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Why Shouldn’t We Reject Copyright in Advertising?
Don’t focus on quality, focus on need for creation?
We should use copyright to incentivize the creation of works that wouldn’t otherwise be produced
Given the importance of advertising to the circus, circuses would produce posters with or without copyright protection
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63. Why Shouldn’t We Reject Copyright in Advertising?
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Why Shouldn’t We Reject Copyright in Advertising?
Given that copyright frustrates subsequent uses, we shouldn’t propertize except when we need to do so to cause creation
Bleistein loses
Is this Justice Harlan?
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64. Contracts Hypo What result? Wallace goes to Courier for posters
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Contracts
Hypo
Wallace goes to Courier for posters
The contract between Wallace and Courier specifies that all copyrights created in posters will be owned by
Version 1: Wallace
Version 2: Courier
What result?
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65. The Creation of the Posters
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The Creation of the Posters
Originals
Courier Co. produces color lithographs and prints; George Bleistein is a Courier partner
Courier Company artist creates the posters
Courier prints some for Wallace
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66. The Creation of the Posters
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The Creation of the Posters
Copies
Wallace wants new posters printed and gives three originals from Courier to Donaldson
Donaldson gives those to his artists, so that they can make new posters
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67. The Creation of the Posters
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The Creation of the Posters
Originals or Copies?
6th Circuit concludes the Donaldson versions were substantially identical to the Courier versions
And the Setup to the Supreme Court
Donaldson claims that the Bleistein posters were outside of the protection of copyright law and 6th Circuit agreed
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68. What Does this Mean? Holmes’s statement in Bleistein
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What Does this Mean?
Holmes’s statement in Bleistein
“But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy.”
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69. Harlan’s Dissent Says Justice Harlan (quoting the lower court)
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Harlan’s Dissent
Says Justice Harlan (quoting the lower court)
“If a chromo, lithograph, or other print, engraving, or picture has no other use than that of a mere advertisement, and no value aside from this function, it would not be promotive of the useful arts, within the meaning of the constitutional provision, to protect the ‘author’ in the exclusive use thereof, and the copyright statute should not be construed as including such a publication.
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70. 9/17/2018
Harlan’s Dissent
... [The work] must have some connection with the fine arts to give intrinsic value. ... We are unable to discover anything useful or meritorious in the design copyrighted by the plaintiffs in error other than as an advertisement of the acts to be done or exhibited to the public in Wallace’s show.”
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71. Holmes’s Response Lawyers Will be Bad Judges of Quality
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Holmes’s Response
Lawyers Will be Bad Judges of Quality
“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”
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72. Holmes’s Response Copying Speaks for Itself Yes? No?
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Holmes’s Response
Copying Speaks for Itself
“That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.”
Yes? No?
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73. Holmes on Representation Art
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Holmes on Representation Art
If I am just faithfully representing nature, how can I be original?
“The copy is the personal reaction of an individual upon nature. Personality always contain something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.”