introduction to intellectual property: copyright professor todd bruno

Introduction to Intellectual Property: Copyright

Professor Todd Bruno

Intellectual Property

Copyright © Beth Noveck

Theory of ©

• Reward for the author

• Stimulate artistic creativity

To promote the progress of science and useful arts, by securing for limited times to authors and

inventors the exclusive right to their respective writings and discoveries

Article 1, Clause 8, Section 8

Noah Webster



Categories of © Subject Matter17 USC 102(a)

• literary works

• musical works, including any accompanying words

• dramatic works, including any accompanying music

• pantomimes and choreographic works

• pictorial, graphic, and sculptural works

• motion pictures and other audiovisual works;

• sound recordings; and

• architectural works



Subject Matter of Copyright

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

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Original Works of Authorship

• Independent Creation

• Modicum of Originality

Feist Publications c. Rural Telephone Service, 1991

The “Telephone Book” Case



Why is Rural’s Telephone Book Not Deserving of © Protection

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Take Away

• Rejects “sweat of the brow”• Must read Copyright Act in conjunction with the

Constitution• Sine qua non (An essential element) of copyright

is originality• Infringement requires

– Valid ©– Copying of original elements

• Facts are not copyrightable• Copyright in compilations is “thin”



Original Work of Authorship

• Work of authorship must be original• Fixed in a tangible medium• What is original?

– an independent creation– modicum of originality

• What is fixed?



Fixed

A work is "fixed" in a tangible medium of expression 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…



Fixation in a Tangible Medium

• Words, numbers, notes, sounds, pictures, any other graphic or symbolic indicia

• Embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic or any other stable form

• Why have a fixation requirement?



What Isn’t The Subject Matter of Copyright

• Exception

• 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 a work.”

Baker v. Selden, 1879

The Idea-Expression Dichotomy



Take Away• The idea is the “common property of the

whole world”

• The author has the right to express the idea in his own way. Only expression is protectable.

• Why?–Cannot enclose fundamental ideas

–Copyright is not subject to examination and allowing copyrights of ideas would potentially perpetrate a “surprise and fraud upon the public” (Baker v. Selden)



Merger Doctrine

• The subject matter is not an idea but there are so few ways of expressing the idea that there is a MERGER

• The expression merges into the idea itself

• Examples: Picture of airplane to communicate airport; garbage can icon to communicate “trash”

Morissey v. Procter & Gamble, 1967

Rules to a contest

“We cannot recognize copyright as a game of chess in which the public can be checkmated”

First to express a simple idea would prohibit all future users



• “1. Entrants should print name, address and social security number on a boxtop, or a plain paper. Entries must be accompanied by * * * boxtop or by plain paper on which the name * * * is copied from any source. Official rules are explained on * * * packages or leaflets obtained from dealer. If you do not have a social security number you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for prize.

• “Use the correct social security number belonging to the person named on entry * * * wrong number will be disqualified.“

• (Plaintiff’s Rule)



• “1. Entrants should print name, address and Social Security number on a Tide boxtop, or on [a] plain paper. Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name ‘Tide’ is copied from any source. Official rules are available on Tide Sweepstakes packages, or on leaflets at Tide dealers, or you can send a stamped, self-addressed envelope to: Tide ‘Shopping Fling’ Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.

• “If you do not have a Social Security number, you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for a prize.

• “Use the correct Social Security number, belonging to the person named on the entry -- wrong numbers will be disqualified.“

• (Defendant’s Rule



What things can be copyrighted17 USC 102(a)

• literary works




• pictorial, graphic, and sculptural works

• motion pictures and other audiovisual works;

• sound recordings; and

• architectural works



Categories of © Subject Matter

• literary works– “works other than audiovisual works, expressed in words, number,

or other verbal or numerical symbols or indicia, regardless of the nature of the materials or objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied”

– Regardless of literary merit

– Includes non-literal elements: structure, sequence and organization of the work





• sound recordings






– Written plays

– Labanotation of a choreographic work or pantomime

– Film recording of a choreographic work or pantomime




• pictorial, graphic, and sculptural works– “two-dimensional and three-dimensional works of fine,

graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans…”

– Regardless of artistic merit

– Utilitarian function (or useful article) exception (lamps, bathroom sinks, clothing, and computer monitors)



Useful Article Doctrine

• Pictorial, graphic and sculptural works

• Copyrightable are only those elements that are independent of the utilitarian aspects of the article

• Identified separately from the useful article




• Audiovisual works & motion pictures– "Audiovisual works" are works that consist of a series of related images

which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

– "Motion pictures" are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

– Sound track is part of the motion picture




• architectural works (post Dec 1, 1990)– An "architectural work" is the design of a building as embodied in

any tangible medium of expression, including a building, architectural plans, or drawings.

– The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

– Building– Plans– Drawings– Cannot prevent picture taking– Cannot forbid alterations



Exclusive Rights of Copyright Owners

• Reproduce the work

• Prepare derivative works

• Distribute copies or phono-records

• Perform the work

• Display the work publicly

• Transmit sound recording digitally



Works for Hire

• Rights vest with individual author upon creation

• Rights vest with corporate author upon publication

• What about an individual employee or consultant creating for a corporation?

Community for Creative Non-Violence v. Reid

490 U.S. 730 (1989)



Work For Hire Definition(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ''supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

9 categoriesOf works



Work Made For Hire

• Exception to the fundamental principle that copyright ownership vests initially in the individual who creates the work.

• If work made for hire then the employer will be the owner (“pre-assignment”)

• Two-pronged approach– Employee (common law agency definition)– Independent Contractor, fulfilling specified conditions

• Contracting Around the Doctrine

Copyright Duration 302-05Date of Creation Start Term

After 1/1/78

(95 years for pre-1978)

Fixed in a tangible medium of expression

Life+70; Lesser of 95 from publication, or 120 years from creation (works for hire)

1964-1977 When published with notice

28 years, 67 year extension

1923-1963 When published with notice

28 years, 67 year optional renewal

Pre-1978 but not yet published

January 1, 1978 Life+70 or at least until 2003 if remains unpublished, if published then 2048

Sound recordings before Feb 15,1972

Depends on state law Protections not annulled or limited until 2047

Eldred v. Ashcroft, 2003

Constitutionality of Copyright Term Extension

To promote the progress of science and useful arts, by securing for limited times to authors and

inventors the exclusive right to their respective writings and discoveries

Article 1, Clause 8, Section 8

Noah Webster



Exclusive Rights of Copyright Owners

• Reproduce the work

• Prepare derivative works

• Distribute copies or phono-records

• Perform the work

• Display the work publicly

• Transmit sound recording digitally



The Right to Reproduce the Work

• Right to copy 106(1)• Right to prevent others from making exact or

“substantially similar” reproductions• Law prevents copying but not independent creation• How to prove copying?

– Direct proof– Circumstantial evidence

• Must have substantial copying• Lay person test

Test of Infringement for Copying

• Did Defendant copy from plaintiff’s copyrighted work?– Admission– Circumstantial Evidence

• ACCESS• SIMILARITY

• Assuming there was copying, did it constitute improper appropriation



Bright Tunes Music Corp. v. Harrisongs Music,

Ltd., 420 F.Supp. 177 (SDNY 1976),

• http://www.benedict.com/Audio/Harrison/Harrison.aspx

• "His subconscious knew it already had worked in a song his conscious did not remember... That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished."

Steinberg v. Columbia Pictures Industries, Inc.

663 F.Supp. 796



http://www.thenewyorkerstore.com/assets/2/50326_l.jpg

http://www.movie-maniacs.hostned.com/images/1sheets/m/moscowonhudson.jpg



Steinberg v. Columbia Pictures Industries, Inc.

• What were the protected elements of the work under Copyright law?

• Were those elements copied by Columbia?• Did they copy Steinberg’s compilation of

unprotectable elements?• What other arguments could be made for

Columbia Pictures? Counter-arguments?



Scenes a Faire

• Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type.

• In the U.S. it also refers to principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

• For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. These elements are not protected by copyright, though specific sequences and compositions of them can be.



Scenes a Faire

Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986)



Rights of Copyright Owners

• Right to Copy

• Right to Make Derivative Works

• Right to Distribute (106-3)– “.. the owner of copyright under this title has

the exclusive rights to …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;”



Right of Public Performance and Display

• .. the owner of copyright under this title has the exclusive rights to …

• (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; and

• (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.



Display and Performance

• Display• To "display" a work

means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

• Perform• To "perform" a work means to

recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.



Display Right

• Control over display of work is limited by 109-c

• Does not include the right to control public display in the place where the copy is located



Performance Right

• Right is to control public performance not private

• When does a performance become public?



Statutory Limits on Performance and Display Rights

• Fair Use – TBD• Public Interest (Section 110)

– Live educational performances and displays

– Transmissions to classrooms

– Religious performances and displays

– Face-to-face performances of non-dramatic literary or musical works for free or charitable purposes



Fair Use

• 17 USC 107

• Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

• Not an exhaustive list



Fair Use Test

• In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

• (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

• (2) the nature of the copyrighted work; • (3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and • (4) the effect of the use upon the potential market for or

value of the copyrighted work.



Purpose of the Use

• What was the nature of the use?

• Was it commercial?

• Was there good faith and fair dealing?



Nature of the Work

• What was the work at issue?

• What was the nature of the material copied; published or unpublished?



Amount and Substantiality of the Portion Use

• In Absolute Terms?

• Is it the heart of the original work?



Effect on the Market

• Impairment of marketability?

• If it became widespread practice?

• Let’s consider some examples:

Campbell v. Acuff-Rose Music, Inc.

510 U.S. 569 (1994)



Factor One:

1. Was it

2. Was it



Factor One: Take Away

• Presumption against fair use as a result of commerciality is reduced

• Commerciality by itself is not dispositive

• Focus not only on for-profit status but on the use

• Sliding scale test

• No given use is presumptively fair use



Factor Two:

1. What

2. What



Factor Two Take-Away

• Feist Over Fiction

• Idea/expression dichotomy

• Public interest rationales for allowing the use of certain kinds of work

• Even though copyright in expressive work is “thicker”



Third Factor:

1. How much work is borrowed?

2. What was the “heart of the work”?



Third Factor Take-Away

• Extent of permissible copying varies with the purpose and character of the use

• Not only quantity but quality that matters• Do not purloin “Expressive heart” or the “Essence

of the Original”• Inquire as to how it factors in the new work• Parody’s art lies in the tension between a known

original and its pardodic twin• “Market failure” argument



Fourth Factor:

1. Effect on

2. And on



Fourth Factor Take-Away

• Commercial use does not imply de facto a harm to the market

• Have to inquire about harm to market for original and derivative works

• Have to inquire about the widespread effects

• Where they may be a market, it must be protected

• Suppression of the market is not the same thing as usurpation

introduction to intellectual property: copyright professor todd bruno

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