1. COPYRIGHT LAW FALL 2006 Class 5 September 11, 2006 Idea/Expression Dichotomy Functionality Professor Fischer

2. WRAP-UP: FIXATION

3. S. 1101 Can Congress avoid the restrictions in the Copyright Clause of the Constitution by basing its legislative authority on the Commerce Clause instead?

4. Contrast: U.S. v. Martignon, 326 F. Supp.2d 413 (S.D.N.Y.), appeal pending (CB p. 92) And KISS Catalog v. Passport Int’l Prods., 350 F.Supp.2d 823 (C.D. Cal. 2005) (on reconsideration)

5. IDEA-EXPRESSION DICHOTOMY

6. COPYRIGHT PROTECTS EXPRESSION, NOT IDEAS EASY TO STATE, HARD TO APPLY

7. Functionality Functional aspect of works are excluded from copyright protection

8. Functionality Functional aspect of works are excluded from copyright protection So are they in the public domain?

9. Baker v. Selden (1879) Copyrightability of: System? Essay? Blank forms?

10. Baker v. Selden (1879) Where the use of the ''art,'' i.e., the idea, which a copyrighted work explains (or embodies) necessarily requires a copying of the work itself, then such copying will not constitute an infringement of copyright. However, if such copying occurs not in using the art but rather in explaining it, then such copying will constitute an infringement.

11. To what extent is Baker v. Selden current law?

12. 17 U.S.C. § 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 work.

13. 17 U.S.C. 113(b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.

14. Blank Forms What is the blank form rule in Copyright Office Regulation 202.1(c)?

15. The Blank Forms Rule (see Supp 243) Copyright Office Regulation 202.1(c): The following are examples of works not subject to copyright... Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information. Is this good law?

16. Bibbero Systems, Inc. v. Colwell Systems, Inc. (9 th Cir. 1990) CB p. 106 Copyrightability of medical superbill Court says it is “required to examine the scope of the blank forms rule.”

17. Bibbero Systems, Inc. v. Colwell Systems, Inc. (9 th Cir. 1990) CB p. 106 Copyrightability of medical superbill According to the Ninth Circuit, did the blank form convey information? Did the “text with forms” exception apply?

18. Criticism of Bibbero Second Circuit in Kregos v. Associated Press, 937 F2d. 700 (2d Cir. 1991) (copyrightability of pitching form)

19. Morrissey v. Procter & Gamble, 379 F.2d 675 (1 st Cir. 1967) Was the defendant liable for copyright infringement? Why or why not?

20. Morrissey v. Procter & Gamble, 379 F.2d 675 (1 st Cir. 1967) Was the defendant liable for copyright infringement? Why or why not? Merger doctrine (extension of Baker)

21. COPYRIGHTABILITY OF INSTRUCTIONS E.g. operating manual for a digital camera

22. COPYRIGHTABILITY OF RECIPE Julia Grownup perfects a recipe for pumpkin pie. She writes down the ingredients and a straightforward set of instructions for making the dish using standard terms/style for recipe writers. Emeril copies her recipe verbatim in his bestselling cookbook. Can she win a copyright infringement case?

23. LEGAL FORMS: COPYRIGHTABLE? See Continental Casualty Co. v. Beardsley, 253 F.2d 701 (2d Cir.), cert. denied, 358 U.S. 816 (1958) (CB p. 105)

24. The Blank Forms Rule (see Supp 243) Copyright Office Regulation 202.1(c): The following are examples of works not subject to copyright... Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.