Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
date of publication/registration
Duration of 28 years and 28 year renewal 1) Life of author + 50 years Life of author + 50 years
copyright 2) Anonymous/Pseudonymous:
§302 75 years from first publication or
100 years from date of creation,
whichever shorter.
3) Joint works: Last surviving
author’s death + 50 years
Duration of • Prior to 2/15/72 only • From 1/1/78 - current life of
sound protected by state statute and author + 50 years
recordings common law and unaffected
fixed by 1976 Act until 2047
§301(c) • From 2/15/72 through
12/31/77 has 28 year © and
47 year renewal (75 years)
• From 1/1/78 - current life of
author + 50 years
Duration of • All works created but not If works are published before
works ©/published before 1/1/78 will 2002, © protection lasts until
created but be protected until 12/31/2002 12/31/2027 (50 years from
not published per §302. Failure to publish 12/31/77)
before 1/1/78 before 2003 will result in
forfeiture of renewal rights.
§303
• If works are published before
2002, © protection lasts until
12/31/2027 (50 years from
12/31/77)
Requirements §301
for © 1. Must be fixed in tangible
protection medium of expression per
§106.
2. Must come within the subject
matter of copyright per §§ 102
& 103
When is a 1. Investitive publication: • §101: dissemination to the
work when owner invests himself of public, but not limited &/or
published? federal statutory protection. unauthorized, nor public
2. Divestitive Publication: that performance.
which owner divested himself
of state C/L protection.
Duration: All copyrights end last day of the calendar year of expiration.
e.g. © April 10, 1972, under 1909 act renewal is up to December 31, 2000.
Anonymous §302(c): If a creates a work in 1978 as work for hire, published in 1980, the work goes into PD in
2055.
Joint Works §302(b): A and B create joint work in 1980. A dies in 1990 and B in 2000. Copyright enters the PD
in 2050.
Death Records § 302(e): Year of death is most important and kept by the Register of Copyrights and creates a
presumption of death taking effect 75 years after publication, 100 years after creation, whichever is less. The
Register may certify a report that there is no indication of the author’s existence or had died within the previous
50 years.
Duration of Copyright Works Created But Not Published or Copyrighted Before 1/1/78: §303. All works created
but not copyriighted/published before 1/1/78 will be protected until 12/31/2002 per §302. Failure to publish
before 2003 will result in forfeiture of renewal rights. If works are published before 2002, © protection lasts until
12/31/2027 (50 years from 12/31/77). 12/31/2002 will be s significant date.
e.g. A owns © on letter sent to B in 1911. A dies in 1927 is never published. Copyright lasts until 12/31/2002. If
letter is published before 2003 © is extended another 25 years to 12/31/2027. (Note this is 50 years from
12/31/77).
Summary:
Published or copyrighted before 1/1/78:
75 years (28+47 years)
Unpublished:
Life of author + 50 years. All unpublished works on 1/1/78 will last through 2002, and if subsequently published,
through 2027.
• Once the work has fallen into PD during the period that governs, the subsequent Act will not retrieve the work
from the PD. e.g. any work published without copyright notice prior to 1/1/78 will be PD despite the fact that the
Berne Convention of 1988 would have allowed it to be protected without notice.
• Modern law requires © notice only on commerciably appreciable units e.g. wallpaper with squares may
require © notice on each square, but modern rule probably requires © notice only for each unit that is smalles
amount sold so as to have at least one © symbol on it.
Facts: Takara, Japanese toymaker, designed and manufactured toys in Japan without a trademark. Japan
did not require a trademark, and 213,000 toys were manufactured in Japan as such. Takara sold the
rights to Hasbro which manufactured the toys in the US under a trademark they registered for Takura as
author and Hasbro as copyright claimant. Sparkle copies the Transformers that contain a US copyright
charging them to be PD due to invalid copyright.
Holding: Yes, P. A © owner has 5 years from date of publication to make a reasonable cure.
D Sparkle argues Takara’s manufacture of Transformers without the © symbol injected the product into
the PD.§ 405(a) that the omission of notice from copies of a protected work may be excused or cured
under certain circumstances, in which case the copyright is valid from the moment the work was
created, just as if no omission had occurred. § 405(a)(2) allows a person who publishes a
copyrightable work without notice to hold a kind of incipient copyright in the work for 5 years
thereafter. If the omission is cured in that time through registration and the exercise of “a reasonable
effort, to add notice to all copies that are distributed to the public in the US after the omission has
been discovered.” This is how the 1975 Act allows greater flexibility than the 1909 Act.
Court states rule that even with deliberate omissions, such as takara’s, there is a 5 year cure option. In
addition, all Hasbro had to do was make reasonable effort to cure product manufactured in the US, not the
product released by Takara in Japan.
1. Registration:
Reasons to register:
1. Registration is not a condition of copyright protection and may be done at any time during © term.
a. § 1976 Act offers incentives to register:
• cure is allowed only for works registered within 5 years after the publication without notice.
• §410(c) limits prima facie effect of registrations made within 5 years of the work
• § 412 provides no awards of statutory damages or attorney’s fees for any infringement before
effective date of registration or any infringement of copyright commenced after first
publication of the work and before the effective date of its registration unless registered within
3 months after first publication of the work.
2. Prior to 3/1/89, §411(a) of 1976 Act required filing before a suit could be brought for works published in the
US. Works published in foreign countries of Berne Convention did not have to be registered to bring suit (a
compromise before the signing of the Convention).
• Deposit: Deposit must be made of a copy of the work within 3 months after receiving written demand
from the Copyright Office.
• Secure Tests: Copyright may be given to standard exams like the bar, and may be returned after the
exam to prevent others from retreiving the questions.
1. Literary works: Does not make qualitative judgments of the work, and may include catalogs,
directories, or factual references.
2. Pictoral, graphic, and sculptural works: §113: Does not make qualitative judgments of the work, and
includes any craftsmanship but not their mechanical or utilitarian aspects as per Mazer. Only those
features that can be identified seperately from the utilitarian use will be protected.
a. e.g. A two dimensional painting on product is seprately identifiable, but the shape of a lampp is not
seprate from the utilitarian use. Therefore a drawing of a fixture may be copyrighted, but not the
specific style of its work in relation to its utility.
a. Mazer v. Stein
Design of a useful article shall be considered a pictorial, graphic or sculptural work only to the extent that
such design incorporates features that can be identified separately from, and capable of existing
independently of, the utilitarian aspects of the article. Held that the patentability of statutes, fitted as lamps
or unfitted, does not bar copyright as works of art. The copyright protects originality rather than novelty or
invention—conferring only the sole right of multiplying copies. Thus respondents may not exclude others
from using statuettes of human figures in table lamps; they may only prevent use of copies of their
statuettes as such or as incorporated in some other article. Finite number of shapes as applied to
functional/utilitarian nature.
4. Sound recordings
In any fixed medium such as tapes, records, CDs,
5. Musical works
6. Dramatic works
7. Pantomimes and choreographic works
C. Other Rules
§ 102(b): Nature of Copyright
Copyright only extends to expressions of ideas, not any particularidea, procedure, process, system,
principle or discovery, despite the fact that it is embodied in a work.
• Characters of Fiction: As per J.. Hand in Nichols v. Universal: The less developed the characters,
the less they can be copyrighted; that is the penalty the author must bear for marking them too
indistinctly.
Nichols v. Universal Pictures Corp.
Ordinary, wrongful appropriation is shown by proving “substantial similarity” of copyrightable expression.
Copyright in play cannot be limited literally to text, else plagiarist could escape by immaterial variations.
Question is whether part is so substantial, and therefore not “fair use” of copyrighted work. When
plagiarist does not take a block out of situation but abstract of whole, decision is more troubling. In
plays, great number of patters on increasing generality will fit equally as more of incident is left out.
There is point where abstraction = idea = uncopyrightable.
• Architecture: protected under §102 and includes overall form as well as plans and drawings.
• Labels: Phrases are not © and labeling usually falls into unfair competition and trademarking.
• Obscene Works: Copyright protects works and the government does not pass judgment whether
they are of sufficient moral and literary value, or it would be unconstitutional.
• US Government: May purchase and hold rights to a © but work done by its employees as part of
their official duties are not considered protectable by ©.
• Works not subject to ©:
a. Short phrases, slogans, mere typographic ornamentations
b. Ideas, plans, methods, but manner of expression is copyrightable.
c. Blank forms, time cards, graph paper, diaries, bank checks and other generic order forms
d. Common property such as standard calendars, height/weight charts, tape measures,
schedules of sporting events or other tables taken from public documents.
3. Original Expression
Note: There could be a seeming paradox. A better replication, one that is produces far more deftness of
hand, may be guilty of © infringement because it copies the original. A clumsy copy , on the other hand,
may prove to be too crude to constitute a copy and is not an infringement.
Note: This was decided in the opposite in Alva, where P received © protection for an exact replication in
miniature of a Rodin sculpture in the PD. That work was held as constituting sufficient originality, espeially
with the great work that went into it, yet in Tomy, who made three-dimensional works out of the two
dimensional characters, the court ruled that it didn’t take much skill to do so. In Batlin the court did nopt
grant a © for a plastic replica of a cast iron Uncle sam bank in the PD because it was said not to constitute
suffient originality or skill. The plastic model had differed in size and details, yet it seems as though the ©
office is pushing works to embody expressive differences rather than PD copies. In Alfred Bell the court
ruled that a painter’s mezzotint engravings of paintings by the masters were copyrightable because they
exhibited expressive differences. The court says little more than one cannot copy a work.
Rule: A factual copilation is eligible for copyright if it features an original selection or arrangement of facts, but the
copyright is limited to the particular selection or arrangement. In no event may the copyright extend to the facts
themselves.
Facts: Rural telephone was a monopoly telephone service that produced a telephone directory in areas it serviced as
a condition of its monopoly status. D Feist offered to pay for the use of D’s directories but was denied. D Feist
subsequently copied at least 1,300 entries and used them in D’s compilation, which included an accumulation of
regional phone books. P sues that D could not copy its work for its directory.
Issue: Is copyright protection extended to a mere compilation of facts?
Holding: D, NO. Facts are not copyrightable unless the compilation of facts contains a modicum of originality such as
an original selection or arrangement. The rerquisite level of creativity required is extremely low. Here the directory
was typical, listing telephone customers by last name and providing address and phone number, all of which are
bare facts and could be copied the same way a street map is factual. The facts are public domain and are available
to every person. Preesident Ford could not stop others from copying the bare facts historical facts from his
autobiography, but he could prevent others from copying his subjective descriptions and portraits of public figures.
Notes: The court rejects the “sweat of one’s brow” theory as copyright’s purpose is to promote the progress of the arts
and sciences, not to reward the labor of authors. Originally the court required the subsequent copier of bare facts to
go out in the streets and perform the same factual compilation. The court requires three items for a compilation to
contain sufficient originality and to be copyrightable:
i. collection and assembly of preexisting facts
ii. selection, coordination and arrangement of those materials
iii. the creation, by virtue of the particular selection, coordination or arrangement, an “original” work of authorship.
• §103 explains that the granted copyright protects only the author’s original contributions, not the facts or information
conveyed. Copyright only protects the elements that owe their origin to the compiler - the selection, coordination and
arrangement of facts.
• A comprehensive listing of 18,000 baseball cards, divided into 5,000 premium cards and 13,000 common cards was
copyrightable because of the creativity and judgment of choosing the premium cards.
• Financial Information v. Moody’s: Moody’s was allowed to copy cards that contained 5 financial five facts that were
available on each card.
• Maps: Not copyrightable unless sufficiently unique. All factual information is available in the public domain.
Improvement in scale, accuracy, and undiscovered landmark’s are sufficient original for © protection.
• Case reports: West was allowed © protection from Lexis’ use of West’s page numbers for its pagination of West’s
reports which was copyrightable. Callaghan v. Meyers extended the protection to title-page, table of cases,
headnotes, statement of facts, etc..
• Functional Works: Some rules and instructions are not copyrightable because the subject matter is too narrow, as are
standard form contracts.
Rule: Factual information is in the public domain and each has the right to avail himself of the facts. The amount of
time spent researching the facts is irrelevant.
Facts: P Miller wrote a book about an unsuccessful, notorious Georgia kidnapping that occurred in the 70s, and
employed over 2,500 hours of research. D Universal approached Miller about purchasing the rights to the book, but
when negotiations never consummmated, D produced a TV movie about the event. P sues D and screenwriter for
copyright infringement.
Issue: Can the product of research of facts be copyrighted?
Holding: D NO. The product of research is not copyrightable as ideas and facts are not copyrightable. © law embodies
the notion that facts are in the PD and can be used by anyone. The expressions of facts may be copyrightable, and
here the judge misled the jury with the incorrect staement that the labor of research is protected by copyright.
Notes: Factual information is in the public domain. Each has the right to avail himself of the facts contained in P’s
book and to use such information, whether correct or incorrect in his own book.
• Even interpretations - correct or incorrect - of factual events are not copyrightable as theories. An alternate theory of
the Watergate incident or who killed JFK is not copyrightable.
Toksvig (Hans Christian Anderson): Historical research is not copyrightable. P wrote an extensive
biography on Hans Christian Anderson with great effort into certifying the details. D copied 24
specific passages and literally translated them into Danish. Court held no copyright exists for
historical fact which is PD and can be collected by any member of the public, although it is
questionable whether the aliteral translation is copyrightale. here it was not.
b. Statutory Rights
i. Reproduction
• The right to reproduce material where the work is duplicated, transcribed or imitated, or simulated
in a fixed form from which can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine."
• For a work to be reproduced it must be sufficiently permanent or stable to permit to be perceived,
reproduced, or otherwise communicated for a period of more than a transitory duration."
ii. Adaption
• Derivative works: Exclusive right to prepare may overlap right of reproduction, as some
infringement may take place in intangible form such as a ballet or pantomime or play.
• Violation of copyrighted work occurs in a derivative work when:
- it must be based on a copyrighted work
- a translation, musical arrangement, dramatization, etc. or any other form in which way a work
may be recast, transformed, or adopted.
- a detailed commentary on a work inspired by another work is not infringement.
iii. Publication
• The right 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.The © owner would have the right to
control the first public distribution or his work.
iv. Performance
§106(4) extends to "literary, musical, dramatic, and choreographic works, and motion pictures and
other audiovisual works and sound recordings."
• Exclusive right of public performance is expanded to include not only motion pictures on video
tape, film and disk, but slides aswell.
• Examples of performance:
- singer performing in public
- broadcasting network is performing when he or she sings a song
- cable television when it transmits the network broadcast
- when an individual plays a phonorecord or tunes in a radio
• Performance may be accomplished using a machine or other device
• Performance is public if:
(i) the performance takes place at a place open to the public or at any place where a
substantial number of persons outside of a normal circle of a family and its social
acquaintances is gathered; or
(ii) a performance is transmitted or communicated to a place defined in (i) or to the public, by
means of any device where the members of the public are capable of receiving the
performance or display receive it in the same place or in seperate places and at the same
time or different times.
• Routine meeting of business and government are excluded as the numbers are not substantial.
• Performance in public place may also include wired transmission, and any method
v. Display
• §106(5) gives exclusive right to show a copyrighted work or image of it to the public.
Compulsory Licenses
The Copyright Royalty Tribunal is a creation of the 1976 Act and was set up to administer the five compulsory
licenses. It:
i. Sets statutory royalty rates for all compulsory licenses
ii. Settles disputes concerning distribution of monies collected for cable television and jukebox
performances.
• It is more practical to have a standard method in which to have set prices rather than ongoing
negotion by all interested parties. Most couldn't afford the extensive litigation and negotiation
required for such agreements.
2. Phonorecords - §115
• ¢2.75 / work or ¢.5 / minute of playing time or ¢2 per every record manufactured.
3. Jukeboxes - §116
• 1909 Act exempted jukeboxes as not a public performance for profit unless charge is incurred and
reproduction/rendition then occurs.
• $8 / jukebox
• Appliesonly to non-dramatic musical works; it cannot be obtained for a recording of an opera, motion
picture soundtrack, medley of tunes from a Broadway show, etc.. To use dramatic works one must
negotiate with the © owner.
• Purpose of distribution of use of compulsory recordings must be for private use.
• First distribution of the work must have been mmade and authorized by the license owner.
• A substantially modified use must be approvaed by the owner of the work as a derivative work. Non-
conformance may result in a forfeiture of the compulsory license.
• A person is not entitled to compulsory licenses for musical works for the purpose of making an
unauthorized duplication of a musical sound recording originally developed and produced by
another.
• Illustration: B can imitate without permission the sound and style of A's recording of Irving Berling songs without
infringing A's reproduction and adaptive rights in sound recording. B has not infringed the the © in sound
recording,however B may be infringing the copyright by reproduction and adaption right by making the
unauthorized recording.
• Right of Public Display §106(5): Right odf display is limited to public displays (as per the definition of
public) and is considered displayed or performed when transmitted (as per definition of transmission).
Library Photocopying: §108: Allowed for scholarly purposes unless it is systematic and is a substitute for
purchase or subscription. The library collection must be open to the public and
i. The copy reproduced must be a single copy.
ii. It must be made without any purpose of direct or indirect commercial advantage.
Holding: D. Court cites 20th Century v. Aiken and uses the Aiken Exemption which states that there is an exemption
of copyright law for small business establishments, or else it would result in a regime of copyright law that would be
unenforceable and inequitable. Aiken held that a small fast food shop (640 square feet) which had 4 small ceiling
speakers and an installed radio, did not fall into performance, but rather the streowner fell into the listener/viewer
category. Not only would it be impossible to enforce a © rule in all such establishments and bars, but it would be
inequitable as it is a single public rendition of the work and to exact tribute would be to go far beyond what is
required for the economic protection orf copyright owners. Here, the speakers were of low quality such that only
standing next to them would produce any real meaningful sound, as well as the fact that the noise level was
sufficiently high in the outdoor course. - despite the much larger size of the area.
Notes: §110(c) exempts from liability:
Communication of a transmission embodying a performance or display of work by the public reception of a
transmission on a single receiving apparatus of the kind commonly used in private homes, unless:
(i) a direct charge is being made to hear the transmission
(ii) the transmission thus received is further transmitted to the public.
• The P argued with Gap Stores, a case where every Gap in the country was sued for infringement, as the Aiken case
was said to be the outer limits of what would not constitute infringement. In addition, Gap is a multimillion dollar
establishment that could afford such licensing fees and not a small establishment like Aiken, and had a well
equipped recessed sound system.
Vicarious Libaility and Contributory Infringement: Parties may be held liable when they advertise or
promote advertising or dissemination of information about the sale of infringing items when they have
knowledge of the infrignerments. Concept is of knowingly participating in a tortious activity. Sony case
illustrates contributory infringement, aiding in the infringement process, and liability will be found only
when there is no substantive use for the product for non-infringing purposes. Vicarious liability will be
found when it is not unfair to do soeven when D had no actual knowledge of the infringing behavior.
• ASCAP: American Society for Composers, Authors and Publishers: A non-profit association to pool the
non-dramatic performance rights in members' musical compositions for licensing. ASCAP would give
blanket licensing and would give blanket licensing, and collect and enforce roylty collections. Radio and
television networks are major sources of ASCAP licencees. BMI is a rival. Both are governed by anti-trust
regulations.
A. Allows limited use of the work in the general scope of fair use for the following, not all inclusive
categories:
i. criticism
ii. comment
iii. news reporting
• Theories
a. Productive Use theory is that the use uses the work to make a more valuable product such as a
news report or critical report. To copy a record so as not to buy it is a non-productive use
(reproductive) and prohibited.
b. Case by Case determination: Illustrated in Sony Betamax case, as each facts have specific
characteristics that may qualify a use not as infringement but as a fair use of the work.
Rule: If a product in question is capable of significant noninfringing uses then the manufacturer cannot be held liable
for contributory infringement by associtaion.
Facts: In 1970s Sony introduced the Betamax videocassette recorder which enabled users ot record homeTV
programs. Several copyright holders sued D Sony for copyright infringement by its consumers by contributory
infringement. Therefore there are substantial noninfringing uses of the Betamax and Sony is therefore not a
contributory infringer.
1. The recording and copying of significant PD and permissible programs make the recorder a useful and
noninfringing device. Mr. Roger's Neighborhood is one such example of a significant TV show that is proper to
record, as well as numerous other educational materials.
2. Time Shifting uses were accepted by most © owners and in addition, no damages were shown as a result of
the time shifting activities.
Notes: What is important is to not that the use was for non-commercial purposes, and licensing agreements were
impossible. Sony could not approximate and pay for any potential infringements. In addition, the courts decided not
to be in a position to make law and left it for legislature to decide issues on compulsory licenses.
OVERVIEW
COPYRIGHTS
1. FUNDAMENTALS
What Is A Copyright?
Protection which gives owner exclusive right to do and authorize others to do following (17 U.S.C.A. §106):
Exclusive right to reproduce work.
Exclusive right to prepare derivative works (e.g. translations, abridged versions).
Exclusive right to distribute copies of the work to the public by sale/rental.
Exclusive right to perform the work publicly (e.g.: music, plays, dances, pantomimes, motion pictures).
Exclusive right to display the work publicly (e.g.: paintings, sculptures, photographs).
Ownership
Ownership is vested initially in the author (17 U.S.C. §201(a)). Generally vested in creator. Special cases,
author may be commissioner or employer or creator.
Ownership of copyright is distinct from ownership of material object in which work is embodied (17 U.S.C.
§202). Absent written assignment, transfer of object or original doesn_t convey copyright an transfer of
copyright conveys no right to object (17 U.S.C. §202).
AUTHORS Immediately upon creation of work in fixed form (17 U.S.C. §201(a)).
EMPLOYEES & Employer is considered author and owner of copyright (17 U.S.C. §201(b)).
CERTAIN WORKS FOR “Work made for hire” is:
HIRE A work prepared by an employee within the scope of his employment;
or,
Work specially ordered/commissioned for use as a contribution to a
collective work, motion picture or other audiovisual, translation,
supplementary work as a compilation, instructional text, test or
answers or as an atlas IF parties expressly agree in writing that work
shall be considered made for hire.
Definition of employee requires inquiry into following factors:
skill required
source of tools and instrumentalities
location of work
duration of relationship between the parties
method of payment
hired party_s discretion over when and how long to work
regular business of the hiring party
employee benefits
tax treatment of party.
INDEPENDENT Almost never employees and therefore must have a written work for hire
CONTRACTORS agreement to qualify as such. Community for Creative Non-violence v.
Reid
CONTRIBUTORS In collective work, each author retains copyright to own contribution. If
joint work, entitled to equal percentages of ownership unless agreed
otherwise
ASSIGNEES Author may assign rights to another. Must be written and signed by
transferor (17 U.S.C. §204). Recordable (17 U.S.C. §205).
Notice
PRIOR TO MARCH 1, 1989 AFTER MARCH 1, 1989
Copyright notice must appear on published work before it No notice is required by law to copyright
could be protected. Must be affixed to copies in way that a work. Still advisable (17 U.S.C. §§401-
gives reasonable notice of copyright. Must use 6).
Symbol ©/”copyright”/”copr.”
Year of first publication of work
Name of copyright owner.
Duration
WORKS CREATED BEFORE WORKS CREATED AFTER
JANUARY 1, 1978: JANUARY 1, 1978:
28 years with the ability to renew for an additional 28 years If one author, life of the author + 50
for total of 56 years. Several laws were passed by years. 17 U.S.C.A. § 302(a)
Congress extending older copyrights to terms totaling 75 If two or more authors = life of last
years. surviving author + 50 years.
If work for hire/anonymous work/
pseudonymous work = 75 years from
publication or 100 years from creation
whichever is shorter. 17 U.S.C.A. §
203(a)(b)(d)
Idea/Expression Dichotomy
Copyright does not give author right to idea disclosed. Extends only to the expression of the idea (17
U.S.C. §102(b)).
“Merger doctrine”: idea and expression are indistinguishable. Scope of this expression is very limited,
sometimes to virtually verbatim copying. Baker v. Selden, Atari, Inc. v. North American Phillips Consumer
Electronics Corp. For protection of the underlying idea, procedure, etc., the owner must rely on
patent/trademark laws.
The copyright status of the written rules for a game or a system for the operation of a machine is unaffected
by the fact that those rules direct the actions of those who play the game or carry out the process. That the
words of a program are used ultimately in the implementation of a process, should in no way affect their
copyrightability.
If other programs can be written or created which perform the same function as Apple_s operating system
program, then that program is an expression of the idea and hence copyrightable. Thus Apple seeks to
copyright only its particular set of instructions, not the underlying computer process.
Mazer v. Stein
Design of a useful article shall be considered a pictorial, graphic or sculptural work only to the extent that
such design incorporates features that can be identified separately from, and capable of existing
independently of, the utilitarian aspects of the article.
Held that the patentability of statutes, fitted as lamps or unfitted, does not bar copyright as works of art.
The copyright protects originality rather than novelty or invention—conferring only the sole right of
multiplying copies. Thus respondents may not exclude others from using statuettes of human figures in
table lamps; they may only prevent use of copies of their statuettes as such or as incorporated in some
other article.
Finite number of shapes as applied to functional/utilitarian nature.
As Idea And Expression Merge Or As Utility And Nonutility Narrow, Court Is Faced With Choice
Between Two Decisions:
Where inseparable, there could be no protection.
Where so inseparable, protection should not be completely denied.
Originality
Feist Publications v. Rural Telephone Service Co.
An author can claim copyright as long as created it himself, even if a thousand people created it before
him. “One man_s alone.” Originality does not imply novelty; it only implies that claimant did not copy it from
someone else.
Work must possesses some minimal degree of creativity. Test doesn_t incorporate novelty or nonobviousness
standard. Very low level of creativity required—some creative spark no matter how crude, humble or
obvious.
Underlying subject matter is not protected. Copyist is protected from those that may want to reproduce the
reproduction instead of the original. Note, however, that copyist must demonstrate that he has contributed
something to final reproduction. (Originality = distinguishable or substantial variation between original and
reproduction)
4. COPYRIGHT INFRINGEMENT
To Claim Infringement, There Must Be:
Ownership of
Copyrightable subject matter
That the defendant has substantially copied
Without any justifiable defense.
Ownership Of
For examples of ownership, see above.
Copyright registration is prima facie evidence of ownership copyright (17 U.S.C. §204).
Arnstein v. Porter
To prove infringement, plaintiff must demonstrate that defendant_s copied his work and that he “improperly
appropriated” his expression.
Plaintiff_s legally protectable interest is not his reputation as a musician but his interest in the potential
financial returns from his compositions which derive from the lay public_s approbation of his efforts. The
question, therefore, is whether defendant took from plaintiff_s works so much of what is pleasing to the
ears of lay listeners, who comprise the audience from which such popular music is composed, that
defendant wrongfully appropriated something which belongs to the plaintiff.
International Inc.
PLOTS, THEMES, HISTORICAL Basic plot of a story cannot be protected, only the words in which
EVENTS the story is told.
MERE FACTS & COMMON e.g.: calendars, height and weight charts, rulers, or other Lists of
INFORMATION information—can own design but not information.
“Sweat of brow theory”: For many years courts held that
collection that took time and labor to collect (e.g.: lists of
certain persons_ names and addresses) were entitled to
copyright protection.) See Feist Publications v. Rural
Telephone Services: USSC reversed stating that collections
of mere facts cannot be copyrighted. Collection of names
and addresses took no creativity to compile/alphabetize.
Copyright only work for something that took creativity. See
also Financial Information, Inc. v. Moody_s Investors Service,
Inc.: Facts may not be copyrighted. To grant putting copyright
protection based merely on “sweat of the author_s brow”
would risk putting large areas of factual research off-limits
and threaten the public_s unrestrained access to information
Producers of “fact works” have long anticipated copying and
insert into their works phone, arbitrary elements. The blatant
copier copies these phony elements and thereafter is hard
pressed to argue that he took only the “unprotected
elements.” Inadvertent errors of fact or typographical errors
perform a similar role in other cases.
SIMPLE RECIPES & LISTS OF As opposed to a more detailed recipe and compilation.
INGREDIENTS
FORMS, SYSTEMS, CONTEST Where there is some creativity, may be entitled to protection.
BLANKS, AND TESTS However, provided much less protection than other works. Courts
are reluctant to grant protection where work seems coexistent
with underlying idea. (e.g.: blank checks, scorecards, report
forms, order forms, address book, columnar pad, time cards,
graph paper, account books, and diaries). Baker v. Selden
HISTORY Historical facts are in the public domain and not copyrightable,
even though an overall historical work is protectable. A.A.
Hoehling v. Universal City Studios
“SCENES A FARE” Stock or standard literary devices (“incidents, characters or
settings which as a practical matter, indispensable, or at least
standard, in the treatment of a subject”) are not copyrightable.
Hoehling
GOVERNMENT PUBLICATIONS
TYPE FACES Subject matter (alphabet) is so limited and finite as to preclude
copyrightability
UTILITARIAN OBJECTS If object is designed merely to work in a certain way, design
cannot be copyrighted. Should be covered by patents.
Marcus v. Rowley
Third factor: whole sale copying of copyrighted material precludes application of the fair use doctrine.
Fourth factor: A finding of nonprofit educational use doesn_t automatically compel a finding of fair use.
Finding that infringers copied material to use it for same intrinsic purpose for which owner did = strong
indicia of no fair use. Copied material was textbooks prepared primarily for school market.
Fair use presupposes good faith: No attempt to secure plaintiff_s permission.