1. Class 1 Copyright, Spring, 2008 Introduction Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-08 Randal C. Picker. All Rights Reserved.

2. October 1, 2015Copyright © 2005-08 Randal C. Picker2 Materials n Syllabus u picker.uchicago.edu/Copyright/Syllabus.htm u Download statute u Links n Gorman & Ginsburg, Copyright, 7 th Ed. n Readings packet

3. October 1, 2015Copyright © 2005-08 Randal C. Picker3 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)

4. October 1, 2015Copyright © 2005-08 Randal C. Picker4 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.

5. October 1, 2015Copyright © 2005-08 Randal C. Picker5 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;

6. October 1, 2015Copyright © 2005-08 Randal C. Picker6 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.

7. October 1, 2015Copyright © 2005-08 Randal C. Picker7 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.

8. October 1, 2015Copyright © 2005-08 Randal C. Picker8 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.

9. October 1, 2015Copyright © 2005-08 Randal C. Picker9 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.

10. Copyright Magic: The Blank Paper and the Pen October 1, 2015Copyright © 2005-08 Randal C. Picker10

11. 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? u http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=1104764 http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=1104764 October 1, 2015Copyright © 2005-08 Randal C. Picker11

12. October 1, 2015Copyright © 2005-08 Randal C. Picker12 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

13. October 1, 2015Copyright © 2005-08 Randal C. Picker13 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

14. October 1, 2015Copyright © 2005-08 Randal C. Picker14 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

15. October 1, 2015Copyright © 2005-08 Randal C. Picker15 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?

16. October 1, 2015Copyright © 2005-08 Randal C. Picker16 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.

17. October 1, 2015Copyright © 2005-08 Randal C. Picker17 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.

18. October 1, 2015Copyright © 2005-08 Randal C. Picker18 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.

19. October 1, 2015Copyright © 2005-08 Randal C. Picker19 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.

20. October 1, 2015Copyright © 2005-08 Randal C. Picker20 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;

21. October 1, 2015Copyright © 2005-08 Randal C. Picker21 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;

22. October 1, 2015Copyright © 2005-08 Randal C. Picker22 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.

23. October 1, 2015Copyright © 2005-08 Randal C. Picker23 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.

24. October 1, 2015Copyright © 2005-08 Randal C. Picker24 Copying I n Hypo u I compose my poem as before u I tack the paper to a physical poetry bulletin board at the Law School u You read the poem on the bulletin board and write it down on a piece of paper n Have you infringed my copyright?

25. October 1, 2015Copyright © 2005-08 Randal C. Picker25 Answer

26. October 1, 2015Copyright © 2005-08 Randal C. Picker26 Access vs. Copyright n Hypo u I write my poem and read it in class u I take the poem home u You break into my house to steal the poem so that you can read it; you quote from it on your blog n Have you infringed my copyright? Are you guilty of breaking and entering and theft?

27. October 1, 2015Copyright © 2005-08 Randal C. Picker27 Answer

28. October 1, 2015Copyright © 2005-08 Randal C. Picker28 Answer

29. October 1, 2015Copyright © 2005-08 Randal C. Picker29 Copying II n Hypo u I compose poem as before u I then memorize it and put the paper with the poem on it in my desk u I stand in front of the poetry bulletin board and recite the poem from memory u You write it down n Have you infringed my copyright?

30. October 1, 2015Copyright © 2005-08 Randal C. Picker30 Answer

31. October 1, 2015Copyright © 2005-08 Randal C. Picker31 Copying III n Hypo u I compose poem as before u I tack the paper to a physical poetry bulletin board at the Law School u You never see my poem; you compose the same poem (Poem II) and write it down on a piece of paper n Have you infringed my copyright? Do you have a copyright on your poem?

32. October 1, 2015Copyright © 2005-08 Randal C. Picker32 Answer

33. October 1, 2015Copyright © 2005-08 Randal C. Picker33 Q2: Poem II and Originality n Is Poem II An Original Work of Authorship? u Need to have OWA to get copyright u No? u Even if not copied, could argue not “original” as it does not add to the expressions that we had before u So original?

34. October 1, 2015Copyright © 2005-08 Randal C. Picker34 Answer

35. October 1, 2015Copyright © 2005-07 Randal C. Picker35 Burrow-Giles Lithographic Co. v. Sarony n 111 U.S. 53 (1884)

36. October 1, 2015Copyright © 2005-07 Randal C. Picker36 [Wilde 1]

37. October 1, 2015Copyright © 2005-07 Randal C. Picker37 [Wilde 18]

38. October 1, 2015Copyright © 2005-07 Randal C. Picker38

39. October 1, 2015Copyright © 2005-07 Randal C. Picker39

40. October 1, 2015Copyright © 2005-07 Randal C. Picker40 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.

41. October 1, 2015Copyright © 2005-07 Randal C. Picker41 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?

42. October 1, 2015Copyright © 2005-07 Randal C. Picker42 What is our focus? n The mechanical device? u The quill pen and the ink? u The printing press? u The camera? n Are some mechanical devices within the Constitution and others outside it?

43. October 1, 2015Copyright © 2005-07 Randal C. Picker43 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?

44. October 1, 2015Copyright © 2005-07 Randal C. Picker44 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.”

45. October 1, 2015Copyright © 2005-07 Randal C. Picker45 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.”

46. October 1, 2015Copyright © 2005-07 Randal C. Picker46 Did Sarony Invent 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 ….”

47. October 1, 2015Copyright © 2005-07 Randal C. Picker47 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

48. October 1, 2015Copyright © 2005-07 Randal C. Picker48 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?

49. October 1, 2015Copyright © 2005-07 Randal C. Picker49 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 u Holmes’s statement in Bleistein w “Others are free to copy the original. They are not free to copy the copy.”

50. October 1, 2015Copyright © 2005-07 Randal C. Picker50 Idea/Expression n How Copies are Made u At the same time, we have to pay attention to the technology of copying u If B-G takes a new photo of Wilde but W is dressed and posed as in OW No. 18, we should treat this as copying or reprinting the original work