Citation. v. P&G, 379 F.2d 675, 1967 U.S. App. LEXIS 5802, 154 U.S.P.Q.

(BNA) 193 (1st Cir. Mass. June 28, 1967)

Brief Fact Summary. Procter & Gamble (Defendant) used a contest rule very similar to that which Morrissey (Plaintiff) had
copyrighted and used in a sales promotion contest.

Synopsis of Rule of Law. A rule incidental to the operation of a noncopyrightable contest cannot itself be copyrighted if the
information it conveys is so simple that there are only a number of ways in which it can be expressed.

Facts.Morrissey (Plaintiff) copyrighted the rules it had used in a sweepstakes contest revolving around the contestants’ social
security numbers. While conducting a similar type contest, Procter & Gamble (Defendant) used a very similar rule. It explained
that the name, address, and social security number of the participant should be printed on paper or a box top; that the official
rules were available at local dealers; that the social security number of another family member could be used if one did not have
his own number, etc. When Morrissey (Plaintiff) brought suit for copyright infringement, the district court found the contest itself
to be noncopyrightable. It then held that the rule springing from it contained no original creative authorship and was
noncopyrightable. Morrissey (Plaintiff) appealed.

Issue. If a rule incidental to the operation of a noncopyrightable contest conveys information so simple that there are only a
number of ways in which it can be expressed, can the rule be copyrighted?

 1

 2

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Citation. Brandir Int’l, Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142, 1987 U.S. App. LEXIS 15867, 5 U.S.P.Q.2D
(BNA) 1089, Copy. L. Rep. (CCH) P26,200 (2d Cir. N.Y. Dec. 2, 1987)

Brief Fact Summary.Brandir International, Inc. (Plaintiff) sold a wire sculpture as a bicycle rack that by was deemed
not to be copyrightable because it was an industrial design not subject to copyright protection.

Synopsis of Rule of Law. Copyrightability ultimately depends on the extent to which the work reflects artistic
expression not restricted by functional considerations.

Facts. After seeing undulating wire sculptures, a friend suggested to the artist, the chief owner of Brandir International,
Inc. (Brandir) (Plaintiff), that the sculptures would make excellent bicycle racks. Plaintiff then started to manufacture
and sell bike racks derived in part from one or more of the works of art. When Plaintiff discovered that Cascade Pacific
Lumber (Defendant) was selling a similar product, it included a copyright notice with its products and applied to the
Copyright Office for registration. The Copyright Office denied the applications for registration as the bicycle racks did
not include any element that was capable of independent existence as a copyrightability, and the district court granted
summary judgment on the copyright claim. Plaintiff appealed.

Issue. Should copyrightability ultimately depend on the extent to which the work reflects artistic expression not
restricted by functional considerations

Held. (Oakes, J.) Yes. Copyrightability ultimately should depend on the extent to which the work reflects artistic
expression not restricted by functional considerations. If design elements reflect a merger of aesthetic and functional
considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian
elements. The final form of the bicycle rack sold by Brandir (Plaintiff) is basically a product of industrial design. Form
and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures
as aesthetic choices. The original aesthetic elements have clearly been adapted to accommodate and further a
utilitarian purpose. Affirmed.

Concurrence. (Winter, J.) The relevant question should be whether the design of a useful article, however intertwined
with the article’s utilitarian aspects, causes an ordinary reasonable observer to perceive an aesthetic concept not
related to the article’s use. The answer to this question is clear in this case since any reasonable observer would easily
see the bicycle rack as an ornamental sculpture. The Copyright Act expressly states that the legal test is how the final
article is perceived, not how it was developed at various stages along the way.

Discussion. The majority in this case adopted a test suggested by Professor Denicola in his article “Applied Art and
Industrial Design,”� 67 Min. L. Rev. 707 (1983). The Winter dissent suggested applying a different test and another
dissent suggested using a temporal displacement test. In general, if a work is a useful article, the artistic elements
have to be separate in order for the work to be copyrightable.

Pearl dean vs shoemart

Pearl & Dean (Phil), Inc. vs Shoemart, Inc.

February 9, 2012

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409 SCRA 231 – Mercantile Law – Intellectual Property – Law on Copyright – Copyrightable Subject
Pearl & Dean (Phil), Inc. is a corporation engaged in the manufacture of advertising display units called light boxes. In
January 1981, Pearl & Dean was able to acquire copyrights over the designs of the display units. In 1988, their
trademark application for “Poster Ads” was approved; they used the same trademark to advertise their light boxes.
In 1985, Pearl & Dean negotiated with Shoemart, Inc. (SM) so that the former may be contracted to install light boxes
in the ad spaces of SM. Eventually, SM rejected Pearl & Dean’s proposal.
Two years later, Pearl & Dean received report that light boxes, exactly the same as theirs, were being used by SM in
their ad spaces. They demanded SM to stop using the light boxes and at the same time asked for damages amounting
to P20 M. SM refused to pay damages though they removed the light boxes. Pearl & Dean eventually sued SM. SM
argued that it did not infringe on Pearl & Dean’s trademark because Pearl & Dean’s trademark is only applicable to
envelopes and stationeries and not to the type of ad spaces owned by SM. SM also averred that “Poster Ads” is a
generic term hence it is not subject to trademark registration. SM also averred that the actual light boxes are not
copyrightable. The RTC ruled in favor of Pearl & Dean. But the Court of Appeals ruled in favor of SM.
ISSUE: Whether or not the Court of Appeals is correct.
HELD: Yes. The light boxes cannot, by any stretch of the imagination, be considered as either prints, pictorial
illustrations, advertising copies, labels, tags or box wraps, to be properly classified as a copyrightable; what was
copyrighted were the technical drawings only, and not the light boxes themselves. In other cases, it was held that there
is no copyright infringement when one who, without being authorized, uses a copyrighted architectural plan to construct
a structure. This is because the copyright does not extend to the structures themselves.
On the trademark infringement allegation, the words “Poster Ads” are a simple contraction of the generic term poster
advertising. In the absence of any convincing proof that “Poster Ads” has acquired a secondary meaning in this
jurisdiction, Pearl & Dean’s exclusive right to the use of “Poster Ads” is limited to what is written in its certificate of
registration, namely, stationeries.

Unilever vs Ca

Joaquin vs drilon

BJ Productions Inc. (BJPI) was the holder of copyright over the show Rhoda and Me. It holds rights over the show’s
format and style of presentation. In 1991, BJPI’s president Francisco Joaquin saw on TV – RPN 9’s show It’s a Date,
a show which is basically the same as Rhoda and Me. He eventually sued Gabriel Zosa, the manager of the show It’s
a Date. The investigating prosecutor found probable cause against Zosa. Zosa later sought a review of the prosecutor’s
resolution before the Secretary of Justice (Franklin Drilon). Drilon reversed the findings of the fiscal and directed him
to dismiss the case against Zosa.
ISSUE: Whether or not the order of Drilon finding no probable cause is valid.
HELD: Yes. The essence of copyright infringement is the copying, in whole or in part, of copyrightable materials as
defined and enumerated in Section 2 of PD. No. 49 (Copyright Law). Apart from the manner in which it is actually
expressed, however, the idea of a dating game show is a non-copyrightable material. Ideas, concepts, formats, or
schemes in their abstract form clearly do not fall within the class of works or materials susceptible of copyright
registration as provided in PD. No. 49. What is covered by BJPI’s copyright is the specific episodes of the show Rhoda
and Me.
Further, BJPI should have presented the master videotape of the show in order to show the linkage between the
copyright show (Rhoda and Me) and the infringing show (It’s a Date). This is based on the ruling in 20th Century Fox vs
CA (though this has been qualified by Columbia Pictures vs CA, this is still good law). Though BJPI did provide a lot of
written evidence and description to show the linkage between the shows, the same were not enough. A television show
includes more than mere words can describe because it involves a whole spectrum of visuals and effects, video and
audio, such that no similarity or dissimilarity may be found by merely describing the general copyright/format of both
dating game shows.

VENANCIO SAMBAR, doing business under the name and style of CVS Garment Enterprises vs. LEVI STRAUSS &
CO., LEVI STRAUSS (PHIL.), INC.

FACTS:
Private respondents alleged in their complaint that Levi Strauss and Co. (LS&Co.), an internationally known clothing
manufacturer, own the arcuate design trademark which was registered under US Trademark Registration No.
404,248 on November 16, 1943. That sometime in 1987, CVSGIC and Venancio Sambar, without the consent and
authority of private respondents and in infringement and unfair competition, sold and advertised, and despite
demands to cease and desist, continued to manufacture, sell and advertise denim, pants under the brand name
“Europress” with back pockets bearing a design similar to the arcuate trademark of private respondents, thereby
causing confusion on the buying public, prejudiced to private respondent’s goodwill and property right.

Sambar filed a separate answer. He admitted that copyright Registration No. 1-1998 was issued to him, but he
denied using it. He said he did not authorize anyone to use the copyrighted design.

Trial court issued a writ of preliminary injunction enjoining CVSGIC and petitioner from manufacturing, advertising
and selling pants with the arcuate design on their back pockets.

Private respondents moved for reconsideration praying for the cancellation of petitioner’s copyright registration.

Trial court granted the prayer.

Petitioner appealed to the Court of Appeals which affirmed the ruling of the trial court.

ISSUE:

Whether petitioner infringe on private respondent’s arcuate design.

HELD:

To be entitled to a copyright, the thing being copyrighted must be original, created by the author through his own skill,
labor and judgment, without directly copying or evasively imitating the work of another.

Both the trail court and the Court of Appeals found there was infringement.

Ching vs salinas

Facts:

Petitioner Ching is a maker and manufacturer of a utility model, Leaf Spring Eye Bushing for Automobile, for which he holds
certificates of copyright registration. Petitioner’s request to the NBI to apprehend and prosecute illegal manufacturers of his work
led to the issuance of search warrants against respondent Salinas, alleged to be reproducing and distributing said models in violation
of the IP Code. Respondent moved to quash the warrants on the ground that petitioner’s work is not artistic in nature and is a proper
subject of a patent, not copyright. Petitioner insists that the IP Code protects a work from the moment of its creation regardless of
its nature or purpose. The trial court quashed the warrants. Petitioner argues that the copyright certificates over the model are prima
facie evidence of its validity. CA affirmed the trial court’s decision.

Issues:

(1) Whether or not petitioner’s model is an artistic work subject to copyright protection.

(2) Whether or not petitioner is entitled to copyright protection on the basis of the certificates of registration issued to it.

Ruling:

(1) NO. As gleaned from the specifications appended to the application for a copyright certificate filed by the petitioner, the said
Leaf Spring Eye Bushing for Automobile and Vehicle Bearing Cushion are merely utility models. As gleaned from the description
of the models and their objectives, these articles are useful articles which are defined as one having an intrinsic utilitarian function
that is not merely to portray the appearance of the article or to convey information. Plainly, these are not literary or artistic works.
They are not intellectual creations in the literary and artistic domain, or works of applied art. They are certainly not ornamental
designs or one having decorative quality or value. Indeed, while works of applied art, original intellectual, literary and artistic
works are copyrightable, useful articles and works of industrial design are not. A useful article may be copyrightable only if and
only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and
are capable of existing independently of the utilitarian aspects of the article. In this case, the bushing and cushion are not works of
art. They are, as the petitioner himself admitted, utility models which may be the subject of a patent.

(2) NO. No copyright granted by law can be said to arise in favor of the petitioner despite the issuance of the certificates of
copyright registration and the deposit of the Leaf Spring Eye Bushing and Vehicle Bearing Cushion. Indeed, in Joaquin, Jr.
v. Drilon and Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated, the Court ruled that:

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the statute, and not
simply a pre-existing right regulated by it. Being a statutory grant, the rights are only such as the statute confers, and may be
obtained and enjoyed only with respect to the subjects and by the persons, and on terms and conditions specified in the statute.
Accordingly, it can cover only the works falling within the statutory enumeration or description.

Ownership of copyrighted material is shown by proof of originality and copyrightability. To discharge his burden, the applicant
may present the certificate of registration covering the work or, in its absence, other evidence. A copyright certificate
provides prima facie evidence of originality which is one element of copyright validity. It constitutes prima facie evidence of both
validity and ownership and the validity of the facts stated in the certificate.

ABS-CBN CORPORATION v. FELIPE GOZON, GR No. 195956, 2015-03-11

Facts:

ABS-CBN allowed Reuters Television Service (Reuters) to air the... footages it had taken earlier under a special
embargo agreement.

ABS-CBN alleged that under the special embargo agreement, any of the footages it took would be for the "use of
Renter's international subscribers only, and shall be considered and treated by Reuters under 'embargo' against use
by other subscribers in the Philippines. . . . [N]o... other Philippine subscriber of Reuters would be allowed to use
ABS-CBN footage without the latter's consent."

GMA-7... subscribes to both Reuters and Cable News Network (CNN). It received a live video feed of the coverage of
Angelo dela Cruz's arrival from Reuters.

GMA-7 immediately carried the live newsfeed in its program "Flash Report," together with its live broadcast.[13]
Allegedly, GMA-7 did not receive any notice or was not aware that Reuters was airing footages of ABS-CBN.[14]
GMA-7's news... control room staff saw neither the "No Access Philippines" notice nor a notice that the video feed
was under embargo in favor of ABS-CBN.

ABS-CBN filed the Complaint for copyright infringement under Sections 177[16] and 211[17] of the Intellectual
Property Code.

Assistant City Prosecutor Dindo Venturanza issued the Resolution[19] finding probable cause to indict Dela Peña-
Reyes and Manalastas.

Department of Justice Secretary Raul M. Gonzalez (Secretary Gonzalez) ruled in favor of... respondents and held
that good faith may be raised as a defense in the case.

Department of Justice Acting Secretary Alberto C. Agra (Secretary Agra) issued the Resolution (Agra Resolution) that
reversed the Gonzalez Resolution and found probable cause

He ruled that:

Court of Appeals rendered the Decision granting the Petition and reversing and setting aside the Agra Resolution.

Court of Appeals said:

However, it is an admitted fact that petitioner GMA had only aired a five (5) second footage of the disputed live video
feed that it had received from Reuters and CNN as a subscriber. Indeed, petitioners had no notice of the right of
ownership of private respondent over the... same. Without notice of the "No Access Philippines" restriction of the live
video feed, petitioner cannot he faulted for airing a live video feed from Reuters and CNN.
Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of petitioners in airing the five (5)
second footage was undeniably attended by good faith and it thus serves to exculpate them from criminal liability
under the Code. While the

Intellectual Properly Code is a special law, and thus generally categorized as malum prohibitum, it bears to stress
that the provisions of the Code itself do not ipso facto penalize a person or entity for copyright infringement by the
mere fact that one had used a... copyrighted work or material.

Certainly so, in the exercise of one's moral and economic or copyrights, the very provisions of Part IV of the
Intellectual Property Code provide for the scope and limitations on copyright protection under Section 184 and in fact
permit fair use of copyrighted work under Section

185. With the aforesaid statutory limitations on one's economic and copyrights and the allowable instances where
the other persons can legally use a copyrighted work, criminal culpability clearly attaches only when the
infringement had been knowingly and intentionally... committed.

Issues:

whether there is probable cause to charge respondents with infringement under Republic Act No. 8293, otherwise
known as the Intellectual Property Code

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a defense against copyright infringement;

Fifth, whether good faith is a defense in a criminal prosecution for violation of the Intellectual Property Code

Ruling:

ABS-CBN claims that news footage is subject to copyright and prohibited use of copyrighted material is punishable
under the Intellectual Property Code. It argues that the new footage is not a "newsworthy event" but "merely an
account of the arrival of Angelo dela Cruz in the

Philippines — the latter being the newsworthy event":

On the other hand, respondents argue that ABS-CBN's news footage of Angelo dela Cruz's arrival is not
copyrightable or subject to protection

Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the consciousness of the Filipino
people with regard to their countrymen, OFWs working in foreign countries and how the Philippine government
responds to the issues concerning them,... is "news". There is no ingenuity or inventiveness added in the said news
footage.

The news footage is copyrightable.

News or the event itself is not copyrightable. However, an event can be captured and presented in a specific medium.
As recognized by this court in Joaquin, television "involves a whole spectrum of visuals and effects, video and
audio."[95] News... coverage in television involves framing shots, using images, graphics, and sound effects. It
involves creative process and originality. Television news footage is an expression of the news.

Pacific & Southern Co. v. Duncan,[98] which involves a News Monitoring Service's videotaping and sale of WXIA-TVs
news broadcasts:... it is equally well-settled that copyright protection does extend to the reports themselves, as
distinguished from the substance of... the information contained in the reports.

Copyright protects the manner of expression of news reports, "the particular form or collocation of words in which the
writer has communicated it"

The idea/expression dichotomy is a complex matter if one is trying to determine whether a certain material is a copy
of another.101 This dichotomy would be more relevant in determining, for instance, whether a stage play was an
infringement of an author's book involving the same... characters and setting. In this case, however, respondents
admitted that the material under review — which is the subject of the controversy — is an exact copy of the original.
Respondents did not subject ABS-CBN's footage to any editing of their own. The news footage did not... undergo any
transformation where there is a need to track elements of the original.
VI

Respondents point out that upon seeing ABS-CBN's reporter Dindo Amparo on the footage, GMA-7 immediately shut
off the broadcast. Only five (5) seconds passed before the footage was cut. They argue that this shows that GMA-7
had no prior knowledge of ABS-CBN's ownership of the... footage or was notified of it. They claim that the Angelo
dela Cruz footage is considered a short excerpt of an event's "news" footage and is covered by fair use.

This court defined fair use as "a privilege to use the copyrighted material in a reasonable manner without the consent
of the copyright owner or as copying the theme or ideas rather than their expression."[115] Fair use is an exception to
the copyright... owner's monopoly of the use of the work to avoid stifling "the very creativity which that law is designed
to foster."

Determining fair use requires application of the four-factor test. Section 185 of the Intellectual Property Code lists four
(4) factors to determine if there was fair use of a copyrighted work:

The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit
educational purposes;

The nature of the copyrighted work;

The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work.

First, the purpose and character of the use of the copyrighted material must fall under those listed in Section 185,
thus: "criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship,
research, and similar purposes."[117] The purpose and character requirement is important in view of copyright's goal
to promote creativity and encourage creation of works. Hence, commercial use of the copyrighted work can be
weighed against fair use.

The "transformative test" is generally used in reviewing the purpose and character of the usage of the copyrighted
work.[118] This court must look into whether the copy of the work adds "new expression, meaning or message" to
transform it into something... else.[119] "Meta-use" can also occur without necessarily transforming the copyrighted
work used.[120]

Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the nature of the work
is more factual than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine whether usage falls under fair use.
An exact reproduction of a copyrighted work, compared to a small portion of it, can result in the conclusion that its
use is not fair. There may also be cases... where, though the entirety of the copyrighted work is used without consent,
its purpose determines that the usage is still fair.121 For example, a parody using a substantial amount of
copyrighted work may be permissible as fair use as opposed to a copy of a work produced purely... for economic
gain.

Lastly, the effect of the use on the copyrighted work's market is also weighed for or against the user. If this court finds
that the use had or will have a negative impact on the copyrighted work's market, then the use is deemed unfair.

the primary reason for copyrighting newscasts by broadcasters would seem to be to prevent competing stations from
rebroadcasting current news from the station with the best... coverage of a particular news item, thus
misappropriating a portion of the market share.

However, there are also many caveats with these exceptions. A common exception is that some stations rebroadcast
the news of others. The caveat is that generally, the two stations are not... competing for market share. CNN, for
example, often makes news stories available to local broadcasters.

Whether the alleged five-second footage may be considered fair use is a matter of defense. We emphasize that the
case involves determination of probable cause at the preliminary investigation stage. Raising the defense of fair use
does not automatically mean that no infringement... was committed. The investigating prosecutor has full discretion to
evaluate the facts, allegations, and evidence during preliminary investigation. Defenses raised during preliminary
investigation are subject to further proof and evaluation before the trial court. Given the... insufficiency of available
evidence, determination of whether the Angelo dela Cruz footage is subject to fair use is better left to the trial court
where the proceedings are currently pending.
GMA-7's rebroadcast of ABS-CBN's news footage without the latter's consent is not an issue. The mere act of
rebroadcasting without authority from the owner of the broadcast gives rise to the probability that a crime was
committed under the Intellectual Property Code.

VII

Respondents cannot invoke the defense of good faith to argue that no probable cause exists.

Infringement under the Intellectual Property Code is malum prohibitum. The Intellectual Property Code is a special
law. Copyright is a statutory creation

The general rule is that acts punished under a special law are malum prohibitum.[129] "An act which is declared
malum prohibitum, malice or criminal intent is completely immaterial."

Unlike other jurisdictions that require intent for a criminal prosecution of copyright infringement, the Philippines does
not statutorily support good faith as a defense. Other jurisdictions provide in their intellectual property codes or
relevant laws that mens rea,... whether express or implied, is an element of criminal copyright infringement.

The Intellectual Property Code requires strict liability for copyright infringement whether for a civil action or a criminal
prosecution; it does not require mens rea or culpa

Respondents argue that live broadcast of news requires a different treatment in terms of good faith, intent, and
knowledge to commit infringement. To argue this point, they rely on the differences of the media used in Habana et
al. v. Robles, Columbia Pictures v. Court of

Appeals, and this case:

Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under embargo is not a defense in
copyright infringement and cites the case of Columbia Pictures vs. Court of Appeals and Habana et al. vs. Robles
(310 SCRA 511). However, these cases... refer to film and literary work where obviously there is "copying" from an
existing material so that the copier knew that he is copying from an existing material not owned by him. But, how
could respondents know that what they are "copying was not [theirs]" when they... were not copying but merely
receiving live video feed from Reuters and CNN which they aired? What they knew and what they aired was the
Reuters live video feed and the CNN feed which GMA-7 is authorized to carry in its news broadcast, it being a
subscriber of... these companies[.]

It is apt to stress that the subject of the alleged copyright infringement is not a film or literary work but live broadcast
of news footage. In a film or literary work, the infringer is confronted face to face with the material he is allegedly
copying and... therefore knows, or is presumed to know, that what he is copying is owned by another. Upon the other
hand, in live broadcast, the alleged infringer is not confronted with the fact that the material he airs or re-broadcasts is
owned by another, and therefore, he... cannot be charged of knowledge of ownership of the material by another.

Respondents' arguments must fail.

To admit a... different treatment for broadcasts would mean abandonment of a broadcasting organization's minimum
rights, including copyright on the broadcast material and the right against unauthorized re broadcast of copyrighted
material. The nature of broadcast technology is precisely... why related or neighboring rights were created and
developed. Carving out an exception for live broadcasts would go against our commitments under relevant
international treaties and agreements, which provide for the same minimum rights.

Contrary to respondents' assertion, this court in Habana,[150] reiterating the ruling in Columbia Pictures,[151] ruled
that lack of knowledge of infringement is not a valid defense. Habana and Columbia

Pictures may have different factual scenarios from this case, but their rulings on copyright infringement are
analogous. In Habana, petitioners were the authors and copyright owners of English textbooks and workbooks. The
case was anchored on the protection of... literary and artistic creations such as books. In Columbia Pictures, video
tapes of copyrighted films were the subject of the copyright infringement suit.

In Habana, knowledge of the infringement is presumed when the infringer commits the prohibited act:

WHEREFORE, the Petition is partially GRANTED. The Department of Justice Resolution dated June 29, 2010
ordering the filing of the Information is hereby REINSTATED as to respondents Grace Dela Peña-Reyes and John
Oliver T. Manalastas. Branch 93 of the

Regional Trial Court of Quezon City is directed to continue with the proceedings in Criminal Case No. Q-04-131533.
[115] Habana v. Robles, 369 Phil. 764 (1999) [Per J. Pardo, First Division], citing 18 AM JUR 2D §109, in turn citing
Toksvig v. Bruce Pub. Co., (CA7 Wis) 181 F2d 664 [1950]; Bradbury v. Columbia Broadcasting

System, Inc., (CA9 Cal) 287 F2d 478, cert den 368 US 801, 7 L ed 2d 15, 82 S Ct 19 [1961]; Shipman v. R.K.O.
Radio Pictures, Inc., (CA2 NY) 100 F2d 533 [1938].

[116] See Matthew D. Bunker, TRANSFORMING THE NEWS: COPYRIGHT AND FAIR USE IN NEWS-RELATED
CONTEXTS, 52 J. COPYRIGHT SOC'Y U.S.A. 309, 311 (2004-2005), citing Iowa St. Univ. Research Found., Inc. v.
Am. Broad. Cos., 621 F.2d 57, 60 (2d Cir.

1980). The four factors are similarly codified under the United States Copyright Act of 1976, sec. 107:

§ 107 . Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106 A, 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. 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.

The fact that a work is unpublished shall not itself bar a Finding of fair use if such finding is made upon consideration
of all the above factors.

[117] Rep. Act No. 8293 (1997), sec. 185.

[118] See Matthew D. Bunker, Transforming The News: Copyright And Fair Use In News-Related Contexts, 52 J.
COPYRIGHT SOCY U.S.A. 309, 311 (2004-2005).

[119] Id., citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

[120] Id. at 317, citing Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000) and Psihoyos v.
National Examiner, 49 U.S.P.Q.2d 1766 (S.D. N.Y. 1998). Bunker proposes the term "meta-use" for the kind of use
that does... not necessarily transform the original work by adding expression, meaning, or message, but only changes
the purpose of the work. "[Psihoyos] distinguished between using the photograph to 'show what it depict[ed]' versus
commenting upon the photograph in some... way. Certainly the Nunez use was for purposes of commentary on the
photos - the photos had engendered significant controversy, and the news article reported on that controversy. Thus,
the Nunez use was what we might refer to as a 'meta-use' of the photos that... went beyond simply using a
photograph to illustrate a news story - as in Psihoyos - and instead consisted of a news story about the photographs
themselves, or at least public reaction to them.

Citation. Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841, 1879 U.S. LEXIS 1888, 11 Otto 99 (U.S. Jan. 19, 1880)

Brief Fact Summary. Baker (Defendant) sold forms similar to forms contained in a bookkeeping system within Selden’s
(Plaintiff) copyrighted book.

Synopsis of Rule of Law. The copyright protection for a book explaining an art or system extends only to the author’s
unique explanation of it and does not prevent others from using the system or the forms incidentally used.

Facts.Selden (Plaintiff) copyrighted a book in which he used in introductory essay explaining his system of bookkeeping
followed by forms to put the system to use. He had arranged the columns and headings so that the entire operation of
a day, week or month was on a single page or on two pages facing each other. Baker (Defendant) then began selling
forms with columns and headings arranged differently to achieve the same result. When Plaintiff successfully sued for
copyright infringement, Defendant appealed. He argued that the forms were non-copyrightable.

Issue. Does copyright protection for a book explaining an art or system prevent others from using the system or the
forms incidentally used?
Held. (Bradley, J.) No. The copyright protection for a book explaining an art or system extends only to the author’s
unique explanation of it and does not prevent others from using the system or the forms incidentally used. To find that
a copyright protected against use of the system itself or the forms necessary to such use would be to grant protection
similar to a patent without requiring a showing of novelty. Copyright is based on originality, not novelty, and protects
the explanation of the system and not the use of the system. In this case, therefore, the copyright Selden (Plaintiff)
obtained could not give him the exclusive right to use the bookkeeping system or the forms necessary to such
use. Reversed and remanded.

Discussion. This case has been interpreted by many as allowing copying for use as opposed to copying for the
purpose of explanation. However, in applying this rule, some courts have gone rather far and have allowed something
to pass as copying for use when there were alternate ways to arrange the words that could have easily been chosen
to communicate the non-copyrightable system or art. This has provoked much criticism of the interpretation previously
mentioned regarding the rule of this case.

Feist publications vs rural telephone

Brief Fact Summary. A publishing company used information from a telephone directory to publish its own directory.

Synopsis of Rule of Law. To qualify for copyright protection, a work must be original to the author, which means that
the work was independently created by the author, and it possesses at least some minimal degree of creativity. A work
may be original even thought it closely resembles other works so long as the similarity is fortuitous, not the result of
copying.

Facts.Rural Telephone Service Company, Inc. (Plaintiff) provides telephone service to several communities. Due to a
state regulation, it must issue an annual telephone directory, so it published a directory consisting of white and yellow
pages. The yellow pages have advertisements that generate revenue. Feist Publications, Inc. (Defendant) is a
publishing company whose directory covers a larger range than a typical directory. Defendant distributes their
telephone books free of charge, and they also generate revenue through the advertising in the yellow pages. Plaintiff
refused to give a license to Defendant for the phone numbers in the area, so Defendant used them without Plaintiff’s
consent. Rural sued for copyright infringement.

Issue. Are the names, addresses, and phone numbers in a telephone directory able to be copyrighted

Held. No.
Facts cannot be copyrighted, however compilations of facts can generally be copyrighted.
To qualify for copyright protection, a work must be original to the author, which means that the work was
independently created by the author, and it possesses at least some minimal degree of creativity. A work may be
original even thought it closely resembles other works so long as the similarity is fortuitous, not the result of copying.
Facts are not original. The first person to find and report a particular fact has not created the fact; he has merely
discovered its existence. Facts may not be copyrighted and are part of the public domain available to every person.
Factual compilations may possess the requisite originality. The author chooses what facts to include, in what order to
place them, and how to arrange the collected date so they may be effectively used by readers. Thus, even a directory
that contains no written expression that could be protected, only facts, meets the constitutional minimum for copyright
protection if it features an original selection or arrangement. But, even though the format is original, the facts
themselves do not become original through association. The copyright on a factual compilation is limited to
formatting. The copyright does not extend to the facts themselves.
To establish copyright infringement, two elements must be proven: ownership of a valid copyright and copying of
constituent elements of the work that are original. The first element is met in this case because the directory contains
some forward text. As to the second element, the information contains facts, which cannot be copyrighted. They
existed before being reported and would have continued to exist if a telephone directory had never been published.
There is no originality in the formatting, so there is no copyrightable expression. Thus, there is no copyright
infringement.