1. Introduction to Intellectual Property: Copyright
Professor Todd Bruno

2. Theory of © Reward for the author Stimulate artistic creativity
Intellectual Property
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3. Article 1, Clause 8, Section 8
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
Article 1, Clause 8, Section 8
Noah Webster

4. Categories of © Subject Matter 17 USC 102(a)
literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works;
sound recordings; and
architectural works
Intellectual Property
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5. Subject Matter of Copyright4 5
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 1 2 3
Intellectual Property
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6. Original Works of Authorship
Independent Creation
Modicum of Originality
Intellectual Property
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7. Feist Publications c. Rural Telephone Service, 1991
The “Telephone Book” Case

8. Why is Rural’s Telephone Book Not Deserving of © Protection1. 2. 3. 4. 5. 6.
Intellectual Property
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9. Take Away Rejects “sweat of the brow”
Must read Copyright Act in conjunction with the Constitution
Sine qua non (An essential element) of copyright is originality
Infringement requires
Valid ©
Copying of original elements
Facts are not copyrightable
Copyright in compilations is “thin”
Intellectual Property
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10. Original Work of Authorship
Work of authorship must be original
Fixed in a tangible medium
What is original?
an independent creation
modicum of originality
What is fixed?
Intellectual Property
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11. 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…
Intellectual Property
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12. Fixation in a Tangible Medium
Words, numbers, notes, sounds, pictures, any other graphic or symbolic indicia
Embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic or any other stable form
Why have a fixation requirement?
Intellectual Property
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13. What Isn’t The Subject Matter of Copyright
Exception
102(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 a work.”
Intellectual Property
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14. The Idea-Expression Dichotomy
Baker v. Selden, 1879
The Idea-Expression Dichotomy

15. Take Away The idea is the “common property of the whole world”
The author has the right to express the idea in his own way. Only expression is protectable.
Why?
Cannot enclose fundamental ideas
Copyright is not subject to examination and allowing copyrights of ideas would potentially perpetrate a “surprise and fraud upon the public” (Baker v. Selden)
Intellectual Property
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16. Merger Doctrine
The subject matter is not an idea but there are so few ways of expressing the idea that there is a MERGER
The expression merges into the idea itself
Examples: Picture of airplane to communicate airport; garbage can icon to communicate “trash”
Intellectual Property
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17. Morissey v. Procter & Gamble, 1967
Rules to a contest
“We cannot recognize copyright as a game of chess in which the public can be checkmated”
First to express a simple idea would prohibit all future users

18. “1. Entrants should print name, address and social security number on a boxtop, or a plain paper. Entries must be accompanied by * * * boxtop or by plain paper on which the name * * * is copied from any source. Official rules are explained on * * * packages or leaflets obtained from dealer. If you do not have a social security number you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for prize.
“Use the correct social security number belonging to the person named on entry * * * wrong number will be disqualified.“
(Plaintiff’s Rule)
Intellectual Property
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19. “1. Entrants should print name, address and Social Security number on a Tide boxtop, or on [a] plain paper. Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name ‘Tide’ is copied from any source. Official rules are available on Tide Sweepstakes packages, or on leaflets at Tide dealers, or you can send a stamped, self-addressed envelope to: Tide ‘Shopping Fling’ Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.
“If you do not have a Social Security number, you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for a prize.
“Use the correct Social Security number, belonging to the person named on the entry -- wrong numbers will be disqualified.“
(Defendant’s Rule
Intellectual Property
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20. What things can be copyrighted 17 USC 102(a)
literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works;
sound recordings; and
architectural works
Intellectual Property
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21. Categories of © Subject Matter
literary works
“works other than audiovisual works, expressed in words, number, or other verbal or numerical symbols or indicia, regardless of the nature of the materials or objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied”
Regardless of literary merit
Includes non-literal elements: structure, sequence and organization of the work
Intellectual Property
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22. Categories of © Subject Matter
musical works, including any accompanying words
sound recordings
Intellectual Property
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23. Categories of © Subject Matter
dramatic works, including any accompanying music
pantomimes and choreographic works
Written plays
Labanotation of a choreographic work or pantomime
Film recording of a choreographic work or pantomime
Intellectual Property
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24. Categories of © Subject Matter
pictorial, graphic, and sculptural works
“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…”
Regardless of artistic merit
Utilitarian function (or useful article) exception (lamps, bathroom sinks, clothing, and computer monitors)
Intellectual Property
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25. Useful Article Doctrine
Pictorial, graphic and sculptural works
Copyrightable are only those elements that are independent of the utilitarian aspects of the article
Identified separately from the useful article
Intellectual Property
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26. Categories of © Subject Matter
Audiovisual works & motion pictures
"Audiovisual works" are 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, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
"Motion pictures" are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
Sound track is part of the motion picture
Intellectual Property
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27. Categories of © Subject Matter
architectural works (post Dec 1, 1990)
An "architectural work" is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.
The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.
Building
Plans
Drawings
Cannot prevent picture taking
Cannot forbid alterations
Intellectual Property
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28. Exclusive Rights of Copyright Owners
Reproduce the work
Prepare derivative works
Distribute copies or phono-records
Perform the work
Display the work publicly
Transmit sound recording digitally
Intellectual Property
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29. Works for Hire Rights vest with individual author upon creation
Rights vest with corporate author upon publication
What about an individual employee or consultant creating for a corporation?
Intellectual Property
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30. Community for Creative Non-Violence v. Reid
490 U.S. 730 (1989)

31. Work For Hire Definition
(1)
a work prepared by an employee within the scope of his or her employment; or
(2)
a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ''supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
9 categories
Of works
Intellectual Property
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32. Work Made For Hire
Exception to the fundamental principle that copyright ownership vests initially in the individual who creates the work.
If work made for hire then the employer will be the owner (“pre-assignment”)
Two-pronged approach
Employee (common law agency definition)
Independent Contractor, fulfilling specified conditions
Contracting Around the Doctrine
Intellectual Property
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33. Copyright Duration 302-05 Date of Creation Start Term After 1/1/78
(95 years for pre-1978)
Fixed in a tangible medium of expression
Life+70; Lesser of 95 from publication, or 120 years from creation (works for hire)
When published with notice
28 years, 67 year extension
28 years, 67 year optional renewal
Pre-1978 but not yet published
January 1, 1978
Life+70 or at least until 2003 if remains unpublished, if published then 2048
Sound recordings before Feb 15,1972
Depends on state law
Protections not annulled or limited until 2047

34. Constitutionality of Copyright Term Extension
Eldred v. Ashcroft, 2003
Constitutionality of Copyright Term Extension

35. Article 1, Clause 8, Section 8
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
Article 1, Clause 8, Section 8
Noah Webster

36. Exclusive Rights of Copyright Owners
Reproduce the work
Prepare derivative works
Distribute copies or phono-records
Perform the work
Display the work publicly
Transmit sound recording digitally
Intellectual Property
Copyright © Beth Noveck

37. The Right to Reproduce the Work
Right to copy 106(1)
Right to prevent others from making exact or “substantially similar” reproductions
Law prevents copying but not independent creation
How to prove copying?
Direct proof
Circumstantial evidence
Must have substantial copying
Lay person test
Intellectual Property
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38. Test of Infringement for Copying
Did Defendant copy from plaintiff’s copyrighted work?
Admission
Circumstantial Evidence
ACCESS
SIMILARITY
Assuming there was copying, did it constitute improper appropriation
Improper Appropriation

39. Bright Tunes Music Corp. v. Harrisongs Music, Ltd. , 420 F. Supp
Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (SDNY 1976),
"His subconscious knew it already had worked in a song his conscious did not remember... That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished."
Intellectual Property
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40. Steinberg v. Columbia Pictures Industries, Inc.
663 F.Supp. 796

41.
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42. Steinberg v. Columbia Pictures Industries, Inc.
What were the protected elements of the work under Copyright law?
Were those elements copied by Columbia?
Did they copy Steinberg’s compilation of unprotectable elements?
What other arguments could be made for Columbia Pictures? Counter-arguments?
Intellectual Property
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43. Scenes a Faire
Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type.
In the U.S. it also refers to principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.
For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. These elements are not protected by copyright, though specific sequences and compositions of them can be.
Intellectual Property
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44. Scenes a Faire
Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986)
Intellectual Property
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45. Rights of Copyright Owners
Right to Copy
Right to Make Derivative Works
Right to Distribute (106-3)
“.. the owner of copyright under this title has the exclusive rights to …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;”
Intellectual Property
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46. Right of Public Performance and Display
.. the owner of copyright under this title has the exclusive rights to …
(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; and
(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.
Intellectual Property
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47. Display and Performance
To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
Perform
To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
Intellectual Property
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48. Display Right Control over display of work is limited by 109-c
Does not include the right to control public display in the place where the copy is located
Intellectual Property
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49. Performance Right Right is to control public performance not private
When does a performance become public?
Intellectual Property
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50. Statutory Limits on Performance and Display Rights
Fair Use – TBD
Public Interest (Section 110)
Live educational performances and displays
Transmissions to classrooms
Religious performances and displays
Face-to-face performances of non-dramatic literary or musical works for free or charitable purposes
Intellectual Property
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51. Fair Use
17 USC 107
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Not an exhaustive list
Guidance not exact rules
The result of judicial accretion; developed as a common law doctrine
Would the reasonable copyright owner have consented?
Intellectual Property
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52. Fair Use Test
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Intellectual Property
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53. Purpose of the Use What was the nature of the use? Was it commercial?
Was there good faith and fair dealing?
Intellectual Property
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54. Nature of the Work What was the work at issue?
What was the nature of the material copied; published or unpublished?
Intellectual Property
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55. Amount and Substantiality of the Portion Use
In Absolute Terms?
Is it the heart of the original work?
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56. Effect on the Market Impairment of marketability?
If it became widespread practice?
Let’s consider some examples:
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57. Campbell v. Acuff-Rose Music, Inc.

58. Factor One:
Was it
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59. Factor One: Take Away
Presumption against fair use as a result of commerciality is reduced
Commerciality by itself is not dispositive
Focus not only on for-profit status but on the use
Sliding scale test
No given use is presumptively fair use
Intellectual Property
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60. Factor Two:
What
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61. Factor Two Take-Away Feist Over Fiction Idea/expression dichotomy
Public interest rationales for allowing the use of certain kinds of work
Even though copyright in expressive work is “thicker”
Intellectual Property
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62. Third Factor: How much work is borrowed?
What was the “heart of the work”?
Intellectual Property
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63. Third Factor Take-Away
Extent of permissible copying varies with the purpose and character of the use
Not only quantity but quality that matters
Do not purloin “Expressive heart” or the “Essence of the Original”
Inquire as to how it factors in the new work
Parody’s art lies in the tension between a known original and its pardodic twin
“Market failure” argument
Intellectual Property
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64. Fourth Factor: Effect on And on Intellectual Property
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65. Fourth Factor Take-Away
Commercial use does not imply de facto a harm to the market
Have to inquire about harm to market for original and derivative works
Have to inquire about the widespread effects
Where they may be a market, it must be protected
Suppression of the market is not the same thing as usurpation
Intellectual Property
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