1. Class 1 Copyright, Winter, 2010 Introduction Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. September 17, 2015Copyright © 2005-10 Randal C. Picker2 Constitution n The Congress shall have the Power... u 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; u (Art. I, § 8, cl. 8)

3. September 17, 2015Copyright © 2005-10 Randal C. Picker3 102. Subject matter of copyright: In general n (a) u 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.

4. September 17, 2015Copyright © 2005-10 Randal C. Picker4 102(a) (Cont.) n Works of authorship include the following categories: u (1) literary works; u (2) musical works, including any accompanying words; u (3) dramatic works, including any accompanying music; u (4) pantomimes and choreographic works;

5. September 17, 2015Copyright © 2005-10 Randal C. Picker5 102(a) (Cont.) u (5) pictorial, graphic, and sculptural works; u (6) motion pictures and other audiovisual works; u (7) sound recordings; and u (8) architectural works.

6. September 17, 2015Copyright © 2005-10 Randal C. Picker6 102 (Cont.) n (b) u 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.

7. September 17, 2015Copyright © 2005-10 Randal C. Picker7 101: “Fixed” n A work is “fixed” in a tangible medium of expression u 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.

8. Copyright Magic: The Blank Paper and the Pen September 17, 2015Copyright © 2005-10 Randal C. Picker8

9. Use v. Access n Copyright is u mainly about use rules, assuming legitimate access n Copyright isn’t u a regime for creating access rights n More? Picker, Fair Use v. Fair Access u http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=1104764 http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=1104764 September 17, 2015Copyright © 2005-10 Randal C. Picker9

10. September 17, 2015Copyright © 2005-10 Randal C. Picker10 Do I Have a Copyright in the Poem? n Yes u Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression u Poem should qualify as OWA u Paper should quality as TME u Writing will fix the OWA in a TME

11. September 17, 2015Copyright © 2005-10 Randal C. Picker11 Don’t Need © n No Formalities Required u Don’t need © or something like that w But can (see 401-407) and has advantages (see, for example, 401(d)) u This came into effect in the U.S. with our entry into the Berne Convention as of March 1, 1989

12. September 17, 2015Copyright © 2005-10 Randal C. Picker12 Don’t Need to Register u Don’t need to register the work with the government w But can (see 408-410) and necessary to sue for copyright infringement (see 411); also matters for availability of statutory damages w Very different from patents

13. September 17, 2015Copyright © 2005-10 Randal C. Picker13 Getting the Terms Right n Physical Objects v. Works u Is the piece of paper with the poem on it the work? u If not, what is the work? n Copies vs. Originals u Is the single piece of paper on which the poem is written a copy?

14. September 17, 2015Copyright © 2005-10 Randal C. Picker14 101: Literary Works n “Literary works” are works, other than audiovisual works, u 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.

15. September 17, 2015Copyright © 2005-10 Randal C. Picker15 202 n Ownership of copyright as distinct from ownership of material object u 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.

16. September 17, 2015Copyright © 2005-10 Randal C. Picker16 202 (Cont.) u 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.

17. September 17, 2015Copyright © 2005-10 Randal C. Picker17 101: Copies n “Copies” are u 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.

18. September 17, 2015Copyright © 2005-10 Randal C. Picker18 106. Exclusive rights in copyrighted works n 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: u (1) to reproduce the copyrighted work in copies or phonorecords; u (2) to prepare derivative works based upon the copyrighted work;

19. September 17, 2015Copyright © 2005-10 Randal C. Picker19 106 (Cont.) u (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; u (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;

20. September 17, 2015Copyright © 2005-10 Randal C. Picker20 106 (Cont.) u (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 u (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

21. September 17, 2015Copyright © 2005-10 Randal C. Picker21 201: Ownership of copyright n (a) Initial Ownership. u 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.

22. September 17, 2015Copyright © 2005-10 Randal C. Picker22 Burrow-Giles Lithographic Co. v. Sarony n 111 U.S. 53 (1884) 111 U.S. 53

23. September 17, 2015Copyright © 2005-10 Randal C. Picker23 [Wilde 1]

24. September 17, 2015Copyright © 2005-10 Randal C. Picker24 [Wilde 18]

25. September 17, 2015Copyright © 2005-10 Randal C. Picker25

26. September 17, 2015Copyright © 2005-10 Randal C. Picker26

27. September 17, 2015Copyright © 2005-10 Randal C. Picker27 1865 Copyright Act: Photography 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.

28. September 17, 2015Copyright © 2005-10 Randal C. Picker28 The Key Questions in Burrow-Giles n How does a new device—the camera producing photographs—match with the Constitution’s focus on Authors and Writings? u What conception of authorship will make possible a copyrighted work from such a device?

29. September 17, 2015Copyright © 2005-10 Randal C. Picker29 What is our focus? n The mechanical device? u The quill pen and the ink? u The printing press? u The paint brush and the canvas? u The camera? n Are some mechanical devices within the Constitution and others outside it?

30. September 17, 2015Copyright © 2005-10 Randal C. Picker30 What is our focus? n The role of the author in creating the work? u For manuscripts, the direct link between the brain and the hand doing the writing? u For the printing press, the movement from the manuscript authored as above to the books produced by the press? u For the camera, pushing a button?

31. September 17, 2015Copyright © 2005-10 Randal C. Picker31 What counts as an original photograph? n Third Finding of Fact Below u 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 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.”

32. September 17, 2015Copyright © 2005-10 Randal C. Picker32 Did Sarony Create OW No. 18? n Says the Court u “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 ….”

33. The Work vs. The Copy n Hypo u Sarony has Wilde post just so; adjusts lights and camera angle for perfect picture u Presses button to take picture u Later discovers that there was no film in the camera n Did Sarony create a “an original work of authorship?” Does he have a copyright? September 17, 2015Copyright © 2005-10 Randal C. Picker33

34. The Work vs. The Copy n Section 102(a) Concepts Key u Original work of authorship can exist independent of any medium of fixation u Sarony created the full OWA before he pressed the button u OWA exists independent of whether there is film in the camera September 17, 2015Copyright © 2005-10 Randal C. Picker34

35. The Work vs. The Copy n But Need Film for Copyright u But no (federal) copyright without fixation of the OWA u That is what 102(a) tells us u State law may provide rights for unfixed OWAs (see 301(b)(1)) September 17, 2015Copyright © 2005-10 Randal C. Picker35

36. September 17, 2015Copyright © 2005-10 Randal C. Picker36 What counts as an original photograph? n What about a picture of the Grand Canyon? Unposed pictures at a birthday party? u “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.”

37. Try This Again n Hypo u Photographer selects vase and individual flowers to put in vase u Adjusts lighting, framing in camera, takes picture on film n What is the original work of authorship? Is it copyrighted? September 17, 2015Copyright © 2005-10 Randal C. Picker37

38. Answer n Yes and Yes u Burrow-Giles September 17, 2015Copyright © 2005-10 Randal C. Picker38

39. No Film Again n Hypo u Photographer does as before, but fails to include film in camera, so no photograph results n OWA? Different than before? Copyright? September 17, 2015Copyright © 2005-10 Randal C. Picker39

40. Answer n Yes and No u OWA should be as before, but failure to fix it prevents federal copyright September 17, 2015Copyright © 2005-10 Randal C. Picker40

41. No Camera: Authorship v. Living n Hypo u Photographer, at home, selects vase and individual flowers to put in vase u No camera present, no intent to take picture u Enjoys the vase and the flowers each day n OWA? Different than before? Copyright? September 17, 2015Copyright © 2005-10 Randal C. Picker41

42. Answer n ??? n What distinguishes the act of the photographer in the first version of the hypo and the third version? September 17, 2015Copyright © 2005-10 Randal C. Picker42

43. September 17, 2015Copyright © 2005-10 Randal C. Picker43 When Have We Copied OW No. 18? n Hypo: Three Originations of the B-G Lithograph of Wilde u 1. B-G, just chatting, say “Oscar Wilde: I bet that we could sell 85,000 lithographs of him.” u 2. B-G, reading the NYT, see Wilde mentioned; again, “we could sell 85,000” u 3. B-G sees the Sarony photograph of Oscar Wilde and says “we could sell 85,000” u In each case, Burrow-Giles take a new photo of Wilde, with his permission, and starts to sell those

44. September 17, 2015Copyright © 2005-10 Randal C. Picker44 When Have We Copied OW No. 18? n Questions u Does it matter whether the idea for the lithograph follows 1, 2 or 3? u Under what circumstances, if any, can Sarony claim copyright infringement? u Does it matter how W is dressed or posed?

45. September 17, 2015Copyright © 2005-10 Randal C. Picker45 Idea/Expression n The Scope of the Copyright “Monopoly” u Sarony can’t block all future pictures of Wilde simply by taking his photograph u We need to distinguish the idea of a photo of Wilde from Sarony’s particular photo

46. Idea/Expression u Holmes’s statement in Bleistein w “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.” September 17, 2015Copyright © 2005-10 Randal C. Picker46

47. September 17, 2015Copyright © 2005-07 Randal C. Picker47 Bleistein v. Donaldson Lithographing Co. n 188 US 239 (1903) 188 US 239 n Circus Advertising u Circus advertising key early form of advertising u Circuses advertised by “billers” who could cover 7,000 square feet a day with ads

48. September 17, 2015Copyright © 2005-07 Randal C. Picker48 [Circus poster]

49. September 17, 2015Copyright © 2005-07 Randal C. Picker49 The Creation of the Posters n Originals u Courier Co. produces color lithographs and prints; George Bleistein is a Courier partner u Courier Company artist creates the posters u Courier prints some for Wallace

50. September 17, 2015Copyright © 2005-07 Randal C. Picker50 The Creation of the Posters n Copies u Wallace wants new posters printed and gives three originals from Courier to Donaldson u Donaldson gives those to his artists, so that they can make new posters

51. September 17, 2015Copyright © 2005-07 Randal C. Picker51 The Creation of the Posters n Originals or Copies? u 6 th Circuit concludes the Donaldson versions were substantially identical to the Courier versions n And the Setup to the Supreme Court u Donaldson claims that the Bleistein posters were outside of the protection of copyright law and 6 th Circuit agreed

52. September 17, 2015Copyright © 2005-07 Randal C. Picker52 Contracts n Hypo u Wallace goes to Courier for posters u The contract between Wallace and Courier specifies that all copyrights created in posters will be owned by w Version 1: Wallace w Version 2: Courier n What result?

53. September 17, 2015Copyright © 2005-07 Randal C. Picker53 Why Shouldn’t We Reject Copyright in Advertising? n Don’t focus on quality, focus on need for creation? u We should use copyright to incentivize the creation of works that wouldn’t otherwise be produced u Given the importance of advertising to the circus, circuses would produce posters with or without copyright protection

54. September 17, 2015Copyright © 2005-07 Randal C. Picker54 Why Shouldn’t We Reject Copyright in Advertising? u Given the copyright frustrates subsequent uses, we shouldn’t propertize except when we need to do so to cause creation u Bleistein loses n Is this Justice Harlan?

55. September 17, 2015Copyright © 2005-07 Randal C. Picker55 Harlan’s Dissent n Says Justice Harlan u “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.

56. September 17, 2015Copyright © 2005-07 Randal C. Picker56 Harlan’s Dissent u... [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.”

57. September 17, 2015Copyright © 2005-07 Randal C. Picker57 Holmes’s Response n Lawyers Will be Bad Judges of Quality u “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.”

58. September 17, 2015Copyright © 2005-07 Randal C. Picker58 Holmes’s Response n Copying Speaks for Itself u “That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.” n Yes? No?

59. September 17, 2015Copyright © 2005-07 Randal C. Picker59 Holmes on Representation Art n If I am just faithfully representing nature, how can I be original? u “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.”