1. COPYRIGHT LAW FALL 2008 CLASS 10 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA September 22 2008

2. CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To be able to analyze the copyrightability of pictorial, graphic, and sculptural works

3. WRAP UP: DERIVATIVE WORKS In determining whether a derivative work is original enough to be copyrightable, the Second and Seventh Circuits have been motivated by a fear of harassment by the person or entity claiming copyright in the derivative work. The fear is that that person would use its copyright in the derivative work to improperly claim copyright in a public domain work, or to effectively prevent or greatly limit the licensor in relicensing a copyrighted work to someone else. The Ninth Circuit is less worried about this, and has accepted a lesser standard of originality for derivative works than the Second/Seventh Circuits.

4. Mona Lisa Reproductions

5. PICTORIAL, GRAPHIC AND SCULPTURAL WORKS What is a pictorial, graphic or sculptural work, according to the Copyright Act of 1976? What are some examples of such a work?

6. 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.” 17 U.S.C. § 101.

7. EXAMPLES Maps (protected since 1790) - though not place names on a map or arbitrary symbols on a map Photographs Paintings or Sculpture Prints Art Reproductions (as derivative works - need consent to use underlying works) Charts Diagrams Drawings (including technical, building plans)

8. Originality in Photographs – is this original enough? Why or why not?

9. What about this?

12. Here is the Koons sculpture on the right

13. Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) Originality in 3 respects: A. Rendition B. Timing C. Creation of the Subject According to Kaplan, is the idea- expression dichotomy applicable to visual art works?

14. Diodato v. Spade, 388 F.2d 382 (SDNY 2005) Was the Diodato handbag protectable? Why or why not? Would it have been protectable using the Mannion analysis? How can the two cases be reconciled?

15. Oriental Art Printing, Inc. v. Goldstar Printing 175 F.Supp.2d 542 (S.D.N.Y. 2001), Is this photo from a Chinese takeout menu copyrightable?

16. Does It Matter If A Work is Useful? (Applied Art) Can a doll be copyrightable? Can a bank in the shape of a dog be copyrightable? See Mazer v. Stein, 347 U.S. 201 (1954) – how did this case affect the legal status of designs?

17. PICTORIAL GRAPHIC AND SCULPTURAL WORKS “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.” - from definition of pictorial, graphic and sculptural works in 17 U.S.C. § 101

18. USEFUL ARTICLES What’s a useful article?

19. USEFUL ARTICLES What’s a useful article? Section 101 - a “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” Is that a circular definition?

20. A LITTLE HISTORY ON COPYRIGHTABILITY OF USEFUL ARTICLES Long protected by design patents Until 1954 assumption was that design patent was ONLY way to protect the design of a useful article Much criticism of this situation (e.g. Barbara Ringer’s Report from 1975) - why was there criticism? Why has copyright law traditionally been hostile to protecting the design of useful articles?

21. Design Protection Legislation After Registrar Ringer’s report, there were many attempts to enact design protection legislation Narrow but complete design protection does currently exist to prevent copying the 3-D shape of certain kinds of useful articles. What are these? No general design protection legislation otherwise

22. Design Protection Legislation Narrow but complete design protection for 1. Vessel Hulls (s. 1301) 2. Architectural Works (s. 102(a)(8)) 3. Computer “mask” works

23. MAZER v. STEIN (1954) Involved dancer lamp not dissimilar to one on left What is the holding of this case? How was this case a “radical change”? Is it constitutional?

24. After Mazer, Copyright Office enacted this regulation If the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration

25. Led to split in the Circuits Esquire v. Ringer (D.C. Cir. 1978) – restrictive construction of Copyright Office regulation Kieselstein-Cord v. Accessories by Pearl, Inc. (2d Cir. 1980) [C p. 236] – broader interpretation

26. PICTORIAL GRAPHIC AND SCULPTURAL WORKS “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.” - from definition of pictorial, graphic and sculptural works in 17 U.S.C. § 101

27. USEFUL ARTICLES What’s a useful article?

28. USEFUL ARTICLES What’s a useful article? Section 101 - a “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” Is that a circular definition?

29. WHAT’S A USEFUL ARTICLE: MASKS AND COSTUMES Are costumes copyrightable? Whimsicality v. Rubie’s Costume Co. (2d Cir. 1989) [C p. 228] Are nose masks copyrightable? Masquerade Novelty v. Unique Industries (3d Cir/ 1990 [C p. 228]

30. MASKS AND COSTUMES Are costumes copyrightable? Generally no – useful articles Are nose masks copyrightable? Yes – not useful articles (see masquerade (3d Cir. 1990) CB p. 228

31. TESTS FOR CONCEPTUAL SEPARABILITY Paul Goldstein: Of the many fine lines that run through the Copyright Act, none is more troublesome than the line between protectable pictorial, graphic and sculptural works and unprotectable elements of industrial design.” See Pivot Point (7 th Cir. 2004) CB p. 231