1. COPYRIGHT LAW 2002 CLASS 6 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA JANUARY 30, 2002

2. CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To be able to analyze the copyrightability of historical works –B. To understand the concept of sui generis database legislation, as well as its introduction in the European Union, as well as the arguments in favor and against introducing such protection in the U.S. –C. To be able to analyze the copyrightability of derivative works.

3. WRAP-UP POINTS: COMPILATIONS The 1992 decision of the U.S. Supreme Court in Feist made clear that the sweat of the brow doctrine was not good law. According to Feist, to be copyrightable as an original work of authorship, a compilation required a sufficiently original selection, arrangement, or coordination. Feist made clear that originality was a low standard, requiring only some “minimal level of creativity”. Even if copyrightable, a compilation’s copyright protection was thin.

4. Copyright Act section 103 This is a point that was not made in the previous class, The limited nature of a compilation’s copyright is clear from section 103(b) which provides: “The copyright in a compilation.. extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.”

5. BACK TO WRAP-UP POINTS CCC v. Maclean Hunter shows us that if there is professional judgment in the selection or arrangement of facts or elements, a compilation can be copyrightable. You should know about the merger doctrine, which did not apply in CCC, but bars protection for expression where such expression is ‘merged’ or indispensable to the statement of an idea.

6. WRAP-UP HYPO: COMPILATIONS Hypo 5 at CB 141. Did Maggie Haberman infringe Fred Cantor’s copyright by taking the photos? Why or why not?

7. WRAP-UP HYPO: COMPILATIONS Hypo 5 at CB 141. Did New York Post photographer Maggie Haberman and the Post infringe Fred Cantor’s copyright by taking the photos? Why or why not? See Cantor v. NYP Holdings, Inc., 51 F. Supp.2d 309 (S.D.N.Y. 1999) (granting defendants’ motion for summary judgment on the basis that Cantor’s work was a compilation in which copyright was thin, and they had not copied the selection and arrangement of the photos in Cantor’s compilation).

8. COPYRIGHT IN FACTUAL NARRATIVES To what extent are historical facts copyrightable?

9. Nash v. CBS According to the 7th Circuit, did CBS’s show “The Dillinger Print” infringe Nash’s books setting out his version of Dillinger’s escape from death and new life on the west coast? Why or why not? According to the 7th Circuit, if a work is a historical work, can it be freely copied?

10. Hoehling v. Universal City Studios (2d Cir. 1980) A.A. Hoehling published Who Destroyed the Hindenberg which was based on Hoehling’s extensive investigation, including witness interviews, into the explosion of the luxury zeppelin in 1937. Hoehling’s book is presented as a factual account and written in an objective journalistic style.

11. Hoehling v. Universal City Studios (2d Cir. 1980) Based on his detailed investigations, Hoehling rejected all previously raised explanations for the explosion. He concluded that Eric Spehl, a rigger on the Hindenberg’s crew, planted an explosive device on the dirigible constructed of batteries and a flashbulb. A later author uses Hoehling’s theory as the basis of an epic Hollywood disaster movie. How did the Second Circuit rule? Does the Nash court disagree? If so, how?

12. Matthew Bender v. West (2d Cir. 1998) p. 141, 143; West v. Mead Data Central (8th Cir. 1996), p. 144 According to West, what copyrightable material had HyperLaw taken? According to the Second Circuit, was any of this material copyrightable? To what extent is a volume in the Federal Reporter (compiled by West Publishing) copyrightable, if at all? Whose approach is correct, that of the Eighth Circuit (West’s home circuit) or the Second Circuit? Does the fact that the Eight Circuit cases preceded Feist make any difference to your analysis?

13. SUI GENERIS PROTECTION OF DATABASES What is sui generis protection? EXAMPLE: EU Database Directive 96/9 (1996)

14. EUROPEAN UNION DATABASE DIRECTIVE What databases are covered by the directive? COPYRIGHT provisions SUI GENERIS provisions

15. DATABASE DIRECTIVE What does the directive provide with regard to copyright? What sui generis rights are created by the directive? Can U.S. database compilers claim these rights? What is the term of such sui generis rights? Are there any EXCEPTIONS to the sui generis rights?

16. PROPOSED U.S. SUI GENERIS LEGISLATION Congress has attempted to pass database protection legislation since 1996. Thus far none of the proposed database protection legislation has been enacted (such as the Collections of Information Antipiracy Act in your book at p. 157. The events of September 11 may have slowed the pace of proposed legislation in this area, but it remains a hot issue.

17. ARGUMENTS PRO AND CON Proponents of such legislation argue that Internet business models need such sweat of the brow protection. Databases are increasingly valuable commodities, and require substantial resources to compile. This investment should be protected against freeloading. Opponents argue that there is a danger of encouraging monopolistic behavior if sweat of the brow revives.

18. DERIVATIVE WORKS What is a “derivative work”? (See section 101 of the 1976 Copyright Act)

19. DERIVATIVE WORKS A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.

20. VIEWED BROADLY, ALMOST ALL WORKS ARE DERIVATIVE ! Mr. Justice Story in Emerson v. Davies “In truth, in literature, in science and in art, there are, and can be, few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before.”

21. BATLIN V. SNYDER (1976)

22. TEST FOR ORIGINALITY FOR DERIVATIVE WORK According to the Batlin majority, what is the proper test for originality for a derivative work? Is this a higher test than the test for originality for a non-derivative work? Is Batlin really distinguishable from Alva Studios v. Winninger (the “Hand of God” case)? Why does Meskill CJ dissent? Do you agree with the dissent?

23. Derivative Works: Harassment Fears Batlin majority: “To extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.”