COPYRIGHT LAW FALL 2008

THE CATHOLIC UNIVERSITY OF AMERICA

Class 6: September 8 2008Idea-Expression Dichotomy

Copyright Case: Don’t Mess with J.K. Rowling

Warner Bros. Entertanment Inc./J.K. Rowling v. RDR Books, 07 Civ.9667 (S.D.N.Y. 2008) (halted publication of “The Lexicon” by StevenVander Ark – originally a website; found not a fair use)

WRAP-UP: FIXATION

• 1. Constitutional and statutory requirement for copyrightability

• 2. Technology-neutral• 3. Must be sufficiently “stable” to be

perceptible for “a period of more than transitory duration” – broadly interpreted by courts in digital/video game realm

• 4. Special treatment for broadcasts• 5. Performers’ rights

SPECIAL TREATMENT FOR MUSICAL PERFORMANCES: THE

ANTI-BOOTLEGGING PROVISIONS

• Title 17 § 1101, 18 USC § 2319A• Grew out of the Agreement on Trade

Related Aspects of Intellectual Property (TRIPS) and became law by operation of the 1994 Uruguay Round Agreements Act

• What types of works does it cover? What rights does it give?

• Is it constitutional?

Kiss Catalog

• KISS Catalog v. Passport Int’l Prods., motion for reconsideration granted, 405 F. Supp. 2d 1169 (C.D. Cal. Dec. 21, 2005)

• U.S. v. Martignon, 2007 U.S. App. LEXIS 13800 (2d Cir. June 2007)

An atrocious opinion, or not?

IDEA-EXPRESSION DICHOTOMY

• What is this doctrine?

IDEA-EXPRESSION DICHOTOMY• COPYRIGHT PROTECTS

EXPRESSION, NOT IDEAS• Brandeis (dissent in INS

v. AP (1918): “The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conception and ideas – become after voluntary communication to others, free as the air to common use.”

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.

Baker v. Selden (1879)

• Copyrightability of:• System? • Essay?• Blank forms?• Think about whether the Court had to go

as far as it did in its ruling on copyrightability: could it have based its ruling on an infringement analysis of lack of substantial similarity?

Selden’s Forms

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.

To what extent is Baker v. Selden current law?

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.

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] – contrast reasoning with Morrissey v. Procter & Gamble Co. (1st Cir. 167) [CB p. 103]

Blank Forms

• What is the blank form rule in Copyright Office Regulation 202.1(c)?

The Blank Forms Rule

• 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?

Bibbero Systems, Inc. v. Colwell Systems, Inc. (9th Cir. 1990)

CB p. 106

• Copyrightability of medical superbill

• Court says it is “required to examine the scope of the blank forms rule.”

Bibbero Systems, Inc. v. Colwell Systems, Inc. (9th 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?

Criticism of Bibbero

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