1. Intellectual Property
Boston College Law School
January 14, 2008
Copyright – Useful Article, Works

2. Idea/Expression Dichotomy
17 U.S.C. § 102: Subject Matter
(a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, ….
“(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.”

3. Pictorial, Graphic, Sculptural
17 U.S.C. § 101:
Pictorial, graphic, and sculptural works:
“include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproduction, maps, globes, charts, diagrams, models, and technical drawings …”

4. Pictorial, Graphic, Sculptural

5. Useful Article Doctrine
17 U.S.C. § 101:
Useful article:
“article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”

6. Useful Article Doctrine
17 U.S.C. § 101:
Pictorial, graphic, and sculptural works:
“the design of a useful article … 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.”
H.R. Rep. No :
“Separability”
Physical separability
Conceptual separability

7. Useful Article Doctrine
Applied Art
Industrial Design

8. Copyright, Patent, Trademark
Useful Article
Doctrine
Trademark
Product
Design

9. Brandir v. Cascade Temporal displacement (Newman) Primary use
Primarily aesthetic (Oakes)
Marketed as art (Nimmer)
Design process (Denicola)
Ordinary observer (Winter)

10. Hypotheticals

11. Other Design Protection Regimes
Sui Generis Legislation
Not passed
Design Patents
Novelty, nonobviousness, …
Must get approval from PTO
Trademarks
Secondary meaning
Nonfunctionality

12. 17 U.S.C. § 102
(a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories:
(1) literary works;
(2) musical works, …;
(3) dramatic works;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audio visual works;
(7) sound recordings; and
(8) architectural works

13. Literary Works
Definition: “works … expressed in words, numbers, or other verbal or numerical symbols or indicia”
Examples: books, articles, papers, catalogs, data compilations, software
Limitation: short words and phrases not protected

14. Pictorial, Graphic, Sculptural
Definition: “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models ….”
Limitation: useful article doctrine

15. Architectural Works Protection extended in 1990 Limitations:
Functional elements not protected
Pictorial representations permitted
Alterations and destruction of buildings permitted

16. Dramatic, Pantomime, Choreo.
Works that are meant to be performed
Examples: plays, dances, screenplays, etc.
Must be fixed; if unfixed, subject to state law
Subject to special rules re: public performance right

17. Musical Works Includes both tune and lyrics
Examples: “Happy Birthday”, Copeland’s Third Symphony, Britney Spears’s latest song
Limitations: compulsory cover license

18. Musical Works Compulsory “cover” license, 17 U.S.C. 115, if:
Author has already authorized distribution of a recording
Payment of statutorily set royalty for every copy sold
No material change to fundamental character of the work

19. Covers

20. Sound Recordings
Definition: “works that result from the fixation of a series of musical, spoken, or other sounds”
Examples: N.Y. Philharmonic’s recording of Copland’s Third Symphony, Britney Spears’s latest album
Limitations: No general public performance right (although recent digital performance right)

21. Musical Works and Sound Rec.
Infringement of
Musical Work
Musical Work:
I Shot the Sheriff
by Songwriter
Sound Recording:
I Shot the Sheriff
Bob Marley
License
Unauthorized Copy
of Bob Marley
Sound Recording
Infringement of
Sound Recording
Sound Recording:
I Shot the Sheriff
Joe Liu
No Royalty:
Infringement
of Musical Work
Infringement
Of Musical
Work
Sound Recording:
I Shot the Sheriff
Eric Clapton
Compulsory
License
No Infringement of
Sound Recording
Unauthorized
Broadcast of
Clapton
Version

22. Motion Pictures and A/V
Definition: “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any….”
Examples: movies, multi-media works, video games, etc.

23. Derivative Works
Definition: “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version ….”
Example: movie version of Harry Potter
Additional originality subject to protection
Subject to multiple copyrights

24. Compilations
Definition: “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”
Examples: academic journals, certain encyclopedias, musical compilations, factual compilations
Main issue is originality

25. Roth v. United Card
Roth Greeting Card
United Greeting Card

26. Assignment for Next Class
Read II.D – Ownership and Duration