Copyright



Copyright

Fixation—One requirement for protection

White-Smith v. Apollo, 1908

Pl. Owned compositions of music in published sheet music.

Def. turned the sheet music into player piano rolls.

Ct. said it was not copyright violation. Claimed violation did not occur until a copy was made, and the player rolls were not considered copies within the meaning of the copyright act.

This would certainly be a copy in today’s copyright law.

Midway v. Artic,

Def. was copying the Pl’s computer games, and was claiming that there was no copyright protection because there was no fixed medium of expression.

Ct. claimed the program was considered a literary work and is fixed on the ROM, so there was a copyright violation in copying the game.

Note 4 Pg. 87

MAI Systems

Held that loading computer software on the RAM is considered fixed and could be infringement.

3 exceptions to this

1. User reproduces program in using the computer

2. To reproduce for backup copies

3. Maintenance/ repair

Originality—2nd requirement for copyright protection

Alfred Bell v. Catalda, 1951

Pl. made mezzotints engravings of public domain paintings.

Def. wanted to make color lithographs of the works, claimed the works were in the public domain so that they could not be subject to copyright protection.

Ct. ruled that there is a low threshold of creativity, and the threshold was met and the originality was met with the engraving techniques.

Atari v. Oman,1989

Dealt with the game breakout. Copyright office denied protection.

Ct. of appeals held that you must look at the work as a whole instead of the individual parts, and ultimately copyright protection was granted.

Burrow-Giles Lithograph v. Sarony, 1884

Arguing over a lithograph of a picture of Oscar Wild.

Ct. held ultimately that a photograph does qualify for protection b/c it is a form of artistic expression. The creativity and originality exists in the way the picture was set up such as lighting, angles, etc.

Bleinstein v. Donaldson, 1903

Arguing that the posters of the circus should not be subject to copyright protection b/c they are merely for advertisement purposes.

Supreme Ct. ultimately held that Judges should not be deciding whether something is good vs. bad, or commercial vs noncommercial, and this makes no difference as far as copyright protection is concerned. Posters were protectable.

Judges should not decide the artistic merit b/c this would inhibit artistic expression.

Originality is the only issue w/very minimal view of creativity.

You can copy the original but you can not copy the copy.

Idea v. Expression

Baker v. Seldon, 1880

Pl. developed a book keeping system, and he claimed that his blank forms used for book keeping were subject to copyright.

Ct. said they can not be protected b/c it would protect the system (art). To protect the art or method is in the patent area not copyright.

If the expression were protected here then the author would be given a monopoly.

Even though the expression is original, there is no protection b/c there is a close tie b/w idea and the expression.

Morrissey v. Proctor & Gamble, 1967

Pl. claiming protection in the rules for a sweepstake contest. Ct. ruled said that there was no protection for the rules b/c there is only a limited # of ways to do this, and if they got a monopoly on rules, then they got a monopoly on game also.

CCC v. Maclean Hunter, 1994

District Ct. ruled for CCC claiming that the computerized version of Maclean’s used car prices is not infringement b/c it was simply ideas that were facts.

Appeals court said that the values and figures used by Maclean were creative and not only facts, so it is subject to infringement. It also important to note that the particular arrangement and and layout may be subject to copyright protection.

Kregos

Ct. dealing with baseball statistics.

1. Ideas to advance understanding of phenomena or solution of problems.

2. Ideas infused with authors’ opinion or taste. (Subject to protection if there is enough original protection)

Runstadler Studios v. MCl

Sculpture was a “spiral motion”. The def. copied the expression and called it an idea b/c it was only a shape. Ct. said it was an expression and therefore subject to copyright protection.

Basic Building Block ideas should be open to the public for expression. The expression of these ideas may be subject to protection, but the ideas themselves are not subject to protection.

Chapter 3 copyright protection---Need Fixation and originality (Author and Writing)

Miller v. Universal Studios, 1981

Pl. a reporter wrote a book about a college girl that was kidnapped, the book was copyrighted.

Def. made book into a movie.

Ct. of appeals ruled that research is not subject to copyright protection, and the facts are not copyrightable. The facts of book were research.

YOU can not protect facts for research.

Titles are not subject to copyright but are subject to trademark.

Hoehling

States that historical events, theories, hypothesis, etc. are unprotected by copyright. It does not matter if it is pure history or a theory, it is still facts and still unprotected.

Silverman v. CBS

Case dealing with Amos and Andy characters. They were TV characters based on Radio characters. They were in the public domain so at one time they were protectable early on in the radio scripts.

Literary Works—Include computer software(primary way it is protected)

CONTU—Commission on New Technology Uses: Held that copyright law hold that computer programs are proper subject matter of copyright protection.

Apple v. Franklin, 1984

Ct. ruled that object code of computer is subject to copyright protection even though it is argued that it should not be b/c humans can not read the object code.

Ultimately the ct. held that the object code is subject to copyright protection.

Program is fixed on ROM and the expression is also present as such protection is granted.

Computer programs are literary works and subject to protection.

Musical, Dramatic, Pantomimes, and Choreographic Works

Subject to protection also.

Pictorial, Graphic, and Sculptural Works

Maps and Charts were originally protected under the Sweat of the Brow doctrine.

Presently Maps are protected by the arrangement and selection of the facts which is subject to the protection.

Map is a compilation of factual information.

US v. Hamilton

Map must simply exhibit something original, and the protection will be on the selection and arrangement.

Mazer v. Stein

Pl. sued b/c def. was copying the statute for lamp bases.

PL. got statute protected as a work of art(Pl. was selling as statuettes and lamp bases)

Def. claimed that the statute was protected as art not lamp base.

Ct. held that the statute is still subject to protection even if it is mass produced, and protection under copyright does not prohibit patent protection.

The statute was work of art and subject to protection.

Useful Article: Article having an intrinsic utilitarian function not merely to portray the appearance of the article or to convey information. An article that is normally part of a useful article is considered a useful article.

Useful article with no other purpose is not subject to protection. Primarily utilitarian not protectable, primarily artistic protectable.

Carol Burnhart v. Economy Cover

2 Manequins were used to display clothes at a store.

The aesthetic features were too intertwined to be separable, they can not be conceptually separable. Therefore there is no copyright protection.

The artistic features must be added or superimposed to meet the test.

Conceptually separate.

Kieselstien

Belt buckle was involved. Two buckles were very similar and the ct. held the buckles were copyrightable b/c the buckles can be conceptually separable from the belt and its primary purpose is ornamental and its utilitarian aspect is secondary.

3 Tests of Conceptual Searability

1. Esquire v. Ringer—Conceptual separability exists only where physical disaggregation of an object’s useful from its decorative features can be imagined, but for some practical reason, cannot be accomplished. Example. Removal of bas relief from the wall of a building.

2. Kieselstein-Cord v. Accessories—Conceptual separability exists when the ornamental aspect of the object is primary and the utilitarian aspect is subsidiary.

3. Carol Barnhart v. Economy Cover---There is no conceptual separability when the aesthetic and utilitarian features are inextricably intertwined. Must be added or superimposed to be separable.

4. Brandir v. Cascade—(Bike Rack) If design elements reflect a merger of aesthetic and functional considerations, the artistic and utilitarian aspects are not conceptually separable.

Audiovisual Works

Series of related images-

Stern Case dealing with a video game display changing w/player intervention

Ct. decided that the images do not have to appear in a fixed, invariable order.

Related Images

WGN Case (Broadcast sent both newscast and a program schedule)

Ct. held that copyright in the single audiovisual work comprising the newscast and scheduler protected both b/c both were intended to be seen by viewer.

Sound Recordings

Derivative Works

Work based on a pre-existing work in which a work may be recast, transformed or adapted.

Copyright provides the right to produce derivative works exclusively to the copyright owner.

Lee v. A.R.T. Company, 1997

Def. bought the Pl’s art work and mounted them on tiles and re-sold them.

Pl. claiming it is infringement b/c the def. is making a derivative work.

Ct. rules that there is no derivative work b/c there is not enough originality to constitute a derivative work.

Pl. claims there is no need of originality in the definition.

Ct. held there is a need of originality for the protection of a derivative work and there is no distinction b/w protection and infringement for derivative works.

First Sale doctrine: Limits the copyright owner.

If you buy a copy you can resell it.

Compilations

Feist v. Rural

Ct. ruled that the white page listings did not satisfy the originality requirements b/c they lacked minimal creativity. Book could be protected if there was some minimal amount of creativity in the arrangement or selection of listings.

Bender v. West Publishing

Bender is wanting the ct. to rule the West Reporter system non-copyrightable so that they can put material on computer format.

3 criteria to view

1. # of options available

2. External factors that limit the options and renders others non-creative

3. prior uses that render the selections garden variety

Ct. ruled that the material was not subject to copyright b/c the ct. opinions are not original but are garden variety so there is no protection.

Chapter 4 Ownership and Transfers

Who is the initial owner? What is the manner to transfer?

Works made for Hire: Work prepared by an employer in the scope of employment.

• Employee/Employer relationship:

Employer is considered author of work and is considered the initial owner of the copyright unless there has been an agreement otherwise.

• Commission work:

Belongs to purchaser if agreed to in contract and only for enumerated categories.

Community for Creative Non-Violence v. Reid

Reid hired to create a statute, but there was no communication about the ownership of the copyright.

Factors to determining employee status:

1. hiring party retains right to control product

2. hiring party actually controlled creation of the work

3. formal salaried employees

4. common law agency meaning

Joint Works—Work prepared by 2 or more authors w/intention that creation be merged into inseparably or interdependent parts of a unitary wholes.

Basically this means that these authors will be co-owners of the copyright.

Childress v. Taylor

Author and Def., claiming to be a co-author, are arguing over the copyright of the play.

Ct. rules that Pl. is the copyright owner of play.

There must be an intent of both parties at time of creation that it will be integrated into 1 work.

Case law: There is a requirement of copyrightable of each contribution by the authors of a joint contribution.

This can be bypassed with a contract concerning the copyright issues.

Collective Works

A work such as a anthology, encyclopedia, or periodical issue in which a number of contributions constituting separate and independent works themselves are assembled into a collective whole.

Collective work consists of separate and independent works capable of copyright themselves.

Section 201 (c): States that © in each separate contribution to the collective work is distinct from the © in the collective work as a whole, and vests initially with the owner of the contribution. The owner of the © in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of the collective work, unless the © has been transferred.

Tassini v. New York Times

Transfer of Rights §4.02

May transfer all or any part of rights dealing with ©, by any means of conveyance, and may be handled just like other property in a will, succession etc.

Effects Associates v. Cohen, 1991

Pl. is suing for Cohen, claiming that Def. violated © laws by using the special effects in the movie without paying full price for the effects.

Ct. ruled that the effects can be incorporated into the movie b/c it was implied that they could use the effects b/c Pl. gave the effects to Cohen.

§201 Ownership of ©

Any part of © can be transferred

§204 Transfer of ©

To transfer rights it must be done in writing and signed by owner/agent of © holder.

§5.01 Duration and Renewal

Individual Author: Term is life plus 70 years: Created on or after 1-1-1978

Joint Works: Same based on life of last surviving author

Works made for hire, anonymous, and pseudonymous works: 120 years from date of creation or 95 years from first publication: Which ever occurs first.

§303 Created but not published or © before 1-1-1978

1. Life plus 70 years, but in no case shall it expire before 12-31-2002

2. However, if work is published on or before 12-31-2002, © protection shall not expire before 12-31-2047

§304 Duration of ©: Subsisting © ( copyrighted before1978)

1. © in their 1st term on 1-1-1978

© protection shall endure for 28 years from date it was originally secured

See chart on pg. 344

Dual System Abandonment

1. Promote national uniformity

2. Eliminate unpredictability & unfairness

3. Eliminate perpetual protection

4. International harmonization

Publication is crucial to © protection before 1978.

If publication was w/ proper formalities there was an investment of federal © protection.

Failure to comply w/formalities led to putting works into public domain.

Works fixed on or after 1-1-1978 to 3-1-1989(BCIA)

Publication w/out statutory notice could lead to © abandonment.

Works after 3-1-89 publication w/out notice: no loss of protection but do not get the enhanced remedies.

2: Works published or registered as unpublished works before 1-1-1978:

If published w/out notice

(go back over this later)

Academy Motion Pictures v. Creative House, 1991

Def. copied statute and changed it, and later used it as an award for sales.

Def. claims it is a:

General Publication—Works are available to public regardless of who they are and what they do with it. Loose © protection to the public domain.

Pl. claims:

Limited Publication—work is for a limited purpose to a limited group for a limited time. Not open to public domain.

Ct. held Oscars was limited so it is still subject to © protection.

Motion Pictures: leased usually versus sold.

Under 1976 ACT publication does occur with the leasing. Offering to distribute copies or phonorecords for purposes of further distribution, public performance, or public display does constitute publication.

Notice:

Requirement for one to claim © protection.

Requirements:

1. ©, “copyright”, or “copr”

2. Year of 1st publication

3. Name of © owner

Sound recordings use (p) (phonogram)

Boerne Convention stated that works before 3-1-89 still need notice requirements.

Works after 3-1-89 do not need notice requirements.

Deposit:

At one time, you needed deposit and registration for © to attach.

Registration was also needed to file an infringement suit.

Now, deposit is not needed for © protection.

Boerne convention: Under this there is no formal requirements needed to preserve protection.

However, if there is a certificate of registration, there is a prima facia evidence that the © is valid.

Key is that you must apply for registration, you do not necesscarily have to have it.

Exclusive Rights and Limitations

§106 Rights the © Owner has

1. Right to reproduce in copies or phonorecords

2. Prepare Derivative works

3. Distribute to the public

4. Perform Publicly

5. Display Publicly

6. To perform by means of Digital Audio Transmission

Only the © owner can do or authorize any of the above.

Universal Studios v. Sony

Pl. claimed that Sony was liable for contributory infringement with the production of its Beta Max VCR.

Ct. ruled that it was not contributory infringement b/c of the substantial non-infringing uses such as time-shifting for home use.

4 Important compulsory licenses: (allows the uses w/respect to certain types of works, that the © owner can not refuse to give him/her.)

1. Cable Television

2. Public broadcast license

3. Satellite retransmission license

4. Mechanical license

CARP---© Arbitration Royalty Panel—Decide the statutory license agreements

§106.1 Reproduction

Most fundamental of exclusive rights, Applies to all types of authorship.

Does not have to be an identical copy to constitute infringement.

Walt Disney v. Filmation

Disney claimed that Def. infringed on their right to copy dealing w/Pinnochio. Def. claimed it was not an identical copy, and it was a different medium.

Test: Whether the ordinary or reasonable audience will recognize the work as a dramatization or picturization of Pls. Work.

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In order to avoid copyright disputes, this page is only a partial summary.

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