1. Copyright Law Class 2 Prerequisites for Copyright Protection

2. Review 1909 Act Duration = two 28 year terms. Protection began at publication. Unpublished works not protected except by common law = dual system federal and state laws. Copyright Law – Class 2 © 2011 Anne S. Mason

3. 1976 Act Preemption of common law copyright. All works whether published or not protected from point of fixation in tangible medium. Life of author plus 50 years (extended later to 70). Publication not measuring point except where anonymous and pseudonymous works and works made for hire. Forfeiture if notice not applied to work. Eight categories of protectable subject matter. Exclusive rights and limitations. Compulsory licenses. Ownership divisible. Copyright Law – Class 2 © 2011 Anne S. Mason

4. March 1, 1989 Berne Amendments Notice is permissive. If work originates in Berne country, registration not required to file suit. Recording interest in CR not required. Copyright Law – Class 2 © 2011 Anne S. Mason

5. IP Trilogy Patents 14/20 year duration. Rights based on government grant. Constitutional basis. Must be novel, not obvious, useful. Strict liability tort – anyone who makes, uses or sells liable even if independent creation. Copyright Law – Class 2 © 2011 Anne S. Mason

6. Trademarks Protect goodwill in a brand. Can last forever so long as in use. State and federal laws parallel. Comes into existence upon use in commerce in connection with goods and services that distinguishes services from those of others. Test is likelihood of confusion. Copyright Law – Class 2 © 2011 Anne S. Mason

7. Copyrights 70/95/120 year durations. Protects works of authorship fixed in a tangible medium. Comes into existence upon fixation in tangible medium. Registration does not create the copyright. Copyright Law – Class 2 © 2011 Anne S. Mason

8. State Law Protections Subject to preemption, look for state law remedies for relief. Copyright Law – Class 2 © 2011 Anne S. Mason

9. Prerequisites for CR Protection Section 102(a): works of authorship that are fixed in a tangible medium of expression now known or later developed, from which they can be perceived, reproduced or communicated, either directly or with the aid of a machine or device. Copyright Law – Class 2 © 2011 Anne S. Mason

10. WHITE SMITH MUSIC PUB. CO. v. APOLLO (68) Infringement of copyrights of two musical compositions published in the form of sheet music. Player piano roles of the same music created. What is meant by a copy? Held that it could not be susceptible to copying unless others can see and read it. Hobbled by precedent – because the rolls were part of a machine and were not a copy. The notion of property starts from possession of a tangible object and consists in the right to exclude others from it. Overruled by 1909 Act which extended protection to mechanical reproductions. Holmes special concurrence brings to mind the difference between copyrightability analysis and infringement analysis. Copyright Law – Class 2 © 2011 Anne S. Mason

11. 17 U.S.C. 101 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. Copyright Law – Class 2 © 2011 Anne S. Mason

12. MIDWAY MANUFACTURING CO. v. ARTIC INTERNATIONAL, INC. (75) Pac Man case. Infringer contends that the audiovisual aspects of the games are not fixed in a tangible medium. Fixation does not require that the work be written down or recorded somewhere exactly as it is perceived by the human eye. CR protection extends to works that are fixed in ways that are later developed... Copyright Law – Class 2 © 2011 Anne S. Mason

13. Fixation In sum, is a prerequisite to copyright protection. Is a departure from prior law in that publication with notice was the prerequisite previously. Protection attaches the instant of fixation as long as the other requirement of originality is met. It is fixed when its embodiment in a copy or a 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 more than a transitory duration. Copyright Law – Class 2 © 2011 Anne S. Mason

14. Fixation contd WHITE SMITH shows how reactive copyright law is – evolutionary. The law reacted to that case. The copyright clauses reference to writings is the foundation of the fixation requirement. Dont confuse the question of whether the TYPE of the work is protected versus whether the actual work itself is protected. WHITE SMITH involved the second since fixation had clearly occurred. Not a Berne requirement. Dont confuse the work with the copy. The work is the intangible thing. The copy is the expression that is fixed in a tangible medium. The copy is protectable. The work is not. Copyright Law – Class 2 © 2011 Anne S. Mason

15. Originality Second prerequisite for federal or statutory copyright protection. FEIST case (discuss later) shows it is constitutional requirement of authorship. Independent creation by the author plus modicum of creativity. Does not include patent concepts of novelty or any notion of aesthetic merit. Copyright does not preclude others from using the ideas or information revealed by the authors work. (§ 102(b)). Copyright Law – Class 2 © 2011 Anne S. Mason

16. BURROW-GILES LITHOGRAPHIC CO. v. SARONY (90) Photographer took a photograph of Oscar Wilde which someone then made a lithograph of. Photographer met all formalities for CR protection. Article I, § 8, cl. 8 of the Constitution: 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. Lithographer argued photo is not a writing/mechanical reproduction which involves no thought and thus NO ORIGINALITY. Held: photographs are sufficiently original to warrant protection. Copyright Law – Class 2 © 2011 Anne S. Mason

17. Originality contd Photographs added to the list of protectable items in 1865. Protection may only extend to those features over which the photographer exercised creative control. Zapruder film – captured historical facts mechanically but deemed original because of the creative control. Classification of the elements of originality. Mannion v. Coors Brewing Co. case – absent nearly total identity, some originality in rendition. Joint authorship issues – who contributes what to the image? Copyright Law – Class 2 © 2011 Anne S. Mason

18. BLEISTEIN v. DONALDSON LITHOGRAPHING CO. (98) Infringement case over three ads for the circus. Originality separates intellectual products deserving of protection from those which do not. Holmes basically says that because they are original works whether they are used in commerce as ads makes no difference. Others are free to copy the original. They are not free to copy the copy. [the original is the intangible work; the copy is the expression of the intangible work] Copyright Law – Class 2 © 2011 Anne S. Mason

19. MESHWERKS, INC. v. TOYOTA MOTOR SALES USA, INC. (107) Digital models of Toyotas vehicles for use on its website and in various other media. Sub-contracted with Meshwerks to digitize and model the cars. Vehicles measurements mapped onto computer and modeling software made wire frames of each vehicle. Meshwerks complains when the works are used in other ads it says were not authorized. Defendants move for SJ on the grounds the models are not original. Copyright Law – Class 2 © 2011 Anne S. Mason

20. MESHWERKS contd Must be independently created and possess a modicum of creativity. Court thinks the models are very good copies of the vehicles. Do not involve expression apart from the raw facts of the world. Discusses the Skyy Vodka bottle photo cases to filter out the protectable features of the work. Authors intent can shed light on whether it is copyrightable whether it was independent creation or a copy. [controversial] Because Meshwerks set out to copy the car, it added no original expression. Only what is added to the work can be protected. Copyright Law – Class 2 © 2011 Anne S. Mason

21. The Idea/Expression Dichotomy BAKER v. SELDEN (117) Famous case involving copyrighted book Seldens condensed Ledger. Defense to infringement is that the matter is not the lawful subject of CR. Defendant uses a similar plan for the accounting but its forms have some differences. Court notes that if the author has exclusive rights to use the system explained in the book, no one could practice it without infringing. Question is whether the copyright in the books, the particular expression of the system, extends to the system itself. Copyright Law – Class 2 © 2011 Anne S. Mason

22. BAKER contd There is a clear distinction between the expression in the book and the art which it is intended to explain. Says to protect the art itself or the right to practice it is patent world. The very object of publishing a book on Science or the useful arts is to communicate to the world the useful knowledge which it contains. No one can copy the book itself. The use of the art it explains is different. Copyright Law – Class 2 © 2011 Anne S. Mason

23. Idea/Expression Dichotomy contd Copyright protects the expression of an idea but not the idea itself. Closely tied to 1 st amendment issues. § 102(b) denies protection to any procedure, process, system, method of operation, concept, principle or discovery. Blank forms are lacking in any modicum of creativity. Patents extend to the use of an invention. Copyright does not. The Selden system is dictated by the idea and to uphold the CR would in effect give a monopoly to an idea. Copyright Law – Class 2 © 2011 Anne S. Mason

24. Merger Doctrine MORRISSEY v. P&G (125) Morrissey is the CR owner of a set of rules for a sales promotional contest – sweepstakes. District court held the substance of the game is not copyrightable, citing Selden (the idea is not protectable!) In attempt to show access (and thus copying), the parties showed the court there is more than one way to express the game. Although there was more than one way to express the rules to the game, no protection allowed. Copyright Law – Class 2 © 2011 Anne S. Mason

25. MORRISSEY contd The topic made the subject matter uncopyrightable because of limited ways to express it. The matters in Rule 1 are so straightforward and simple that it cannot form the basis of a monopoly. Can be freely copied. The less ways to express something, the expression merges with the idea and will not be protectable. Copyright Law – Class 2 © 2011 Anne S. Mason

26. In Sum Copyright requires originality and fixation in a tangible medium. Requires a modicum of creativity. Ideas are not protected – only expression is. If the expression cannot be separated from the idea, then it is not protectable. If there are only a few ways to express something, not protectable. Neither would promote the useful arts and sciences. Copyright Law – Class 2 © 2011 Anne S. Mason