Copyright Outline

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COPYRIGHT LAW
Why is Copyright ͞hot͟ today?
c ©arketplace
oc Consolidation ʹ consolidated industries to lobby Congress for copyright related legislated
c Legislation ʹ groups come to an agreement and then bring the idea to the table ʹ who gets in the conversation and who doesn͛t
c Public Rhetoric, cultural practices, legal theory ʹ piracy v. liberty
oc Pirates v. Remixers
c When you: Is it copyrightable?
ac uownload music and software If it is ʹ how owns it?
ac Copy New Yorker cartoons Is it still covered by copyright?
ac uuplicate articles you͛ll read soon If it is still covered, then is someone else͛s use
ac £pload pictures of items to YouTube or Facebook infringement?
c uo you see yourself as a pirate or as doing something socially acceptable and even valuable? If so, is it covered by one of the defenses?
c Technology
Less about issue spotting ʹ but more analysis and
Tim Woo - Larry Lessig ʹ YouhiBenkler policy issues as to what should and shouldn͛t be
uemocratic Culture ʹ she disagrees with most of it ʹ Jack Balkin covered
Copywars ʹ Copyleft If you go this way rather than that way then this is
why it is bad͙
What does the Copyleft Want?
c A rich public domain This is intellectual͙don͛t worry about the doctrine
c Promoting democratic culture since it is easy to find and a mess
c A conception of art as: (bottom line for Lessig et al)
oc uefinitionally expansive
oc Non-commercial
oc Non-commodified
oc Interactive
oc Docial/political
oc Joint
c What are the objecting to?
oc xpansive claims to property
oc £se of technological protection measures and contract provisions to prevent access
oc Increasingly stringent enforcement
Copyright Industries Concerns:

c Rampant Piracy aided by unstoppable technology greatly reducing economic value of property
c Industry destabilization with new forms of communication
oc Peer to Peer
oc £ser generated content
oc uisintermediation
oc uecentralized Networks
Implications ʹ Questions Raised

c What is art? Dharing norms? Critique?
c Public access and authors͛ branding/business decisions
c Access to Knowledge ʹ search and storage, private and public ü she thinks storage is a huge issue
c Dtrategic/political use of copyright ownership
c uoes law matter?
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Copyright Law is a federal statute codified in Title 17 ʹ granted by Article I of the Constitution ͞Intellectual Property Clause͟
The act grants a limited statutory monopoly in original works of authorship that are fixed in a tangible medium of expression.
c Copyright does NOT require registration and since 1989 does not require notice on the work
Once an original work of authorship is fixed in a tangible medium of expression, that work is protected by federal copyright law
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The fundamental purpose of the £D copyright system is to ͞promote . . . Progress͟
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c Intangible goods are ͞nonrivalrous͟ in consumption and have the characteristic of nonexcludablility (once they are with the public everyone can enjoy them and people cannot be excluded from that benefit)
c Copyright law exists to provide a marketable right for the creators and distributors of copyrighted works, which in turn creates an incentive for production and dissemination of new works
Trotter Hardy, Property (and Copyright) in Cyberspace

c Information producers overcome their fear of cheap producing with ͞some assurance that copying with be limited͟
c Four Part Aggregate Assurance of Limited Copying: (thought of as slices of a pie)
oc ntitlement-Like Protection ʹ wide recognition that informational products have an ͞owner͟ who has some ͞rights͟ that would be violated by unauthorized copying
oc Contract ʹ protects because two parties have agreed to treat the product as protected
oc Dtate-of-the-Art Copying ʹ technological changes affect this cost
oc Dpecial-Purpose ʹ cable company scramblers and paying to descramble the signal
Julie Cohen: argues that there should also be a ͞noprotection͟ slice of the pie which belongs to the public and is essential to achieving copyright͛s goal of promoting ͞progress͟
Up

c £tilitarian justification for copyright protection is not the only rationale ü it could be morally required
c But the £D doesn͛t embrace this idea and thus it doesn͛t mesh well with uropean Copyright Laws
John Locke, Two Treaties on Government

c Adding labor to something makes it your property
c However applying this idea to intangible property is difficult
Hegel: property is an extension of human autonomy ʹ a person becomes a real self only by engaging in a property relationship with something external
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c Includes works for which copyright protection has expired
Jessica Litman, The Public uomain

c Authorship is more like transforming and recombining what is already ͞out there͟ in some other form
c The public domain includes works free from copyright ʹ works created before it existed or during and has now expired
c It also includes parts of copyrighted works that are in the public domain ü ideas
Wendy Gordon: Lockean Labor Theory also states that the laborer should not do harm to other people͛s claim to the common and if it conflicts then the common prevails
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c Professor Neil Netanel argues that copyright should be understood along with the 1 Amendment ʹ and the protection includes the creation and communication of such expression which is important to
democracy
c If this is the case then does gov͛t funding for creative works pose a problem?
5. What Progress, and Whose Welfare?
c uoes copyright law necessarily promote general welfare?
c
William P. Alford, To Dteal a Book Is an legant Offense
c China did not have a concept of copyright protection and copying was accepted and celebrated because of the high value placed on the past
c Copying was accepted because it paid respect to the works copied and the author͛s ability to understand their importance
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c Dtarted in ngland and before the printing press there was no need for protection since had copying was so laborious
c Printing press in 1476 ʹ printers could wait and see if a book was a hit and if so then copy it themselves to take advantage of the market
c Printers did have a ͞guild͟ but if someone outside of the guild printed then they could not regulate their actions
c However there were printing press patents granted by the crown
c Created the Dtantioner͛s Company with the crown allowed to print most of the work and could seek out and destroy unauthorized copies (also a way for the crown to sensor heretical writings) ü benefited the
publishers and the crown ʹ not the authors and lapsed around 1694
c 1710 ʹ !! ʹ granted an assignable right to authors to control the publication of their writings ʹ meant to be for the encouragement of learning ʹ limited duration (14 years with one 14 yr renewal)
oc ven though this was meant to be for the publishers ʹ the language and idea of authorship was a part of the statute and moved the concept of ownership to the author
c Trying to show that the idea of copyright was not always the protection of authors͛ rights ü the publishing company to maintain monopoly and the crown for censorship
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c The Framers reacted to the nglish system and specifically stated that copyright must serve a public purpose (not a tool for gov͛t censorship)
c 1790 ʹ the first copyright law and it was for two 14-year terms of protection ʹ also required registration and a deposit with the Decretary of Dtate
oc This directly lead to Congress having to establish a library to hold these works
c Wheaton v. Peters (1834) ʹ established that court opinions are not copyrighted but summaries of arguments could if properly registered
c merson v. uavies (1845) ʹ there is freedom to build upon certain aspects of past works
c Folsom v. ©arsh (1841) ʹ using selections from a previous work ͞fairly͟ did not constitute infringement
c Continuing to expand the right of copyright in the name of Progress

p p Trying to balance the public domain with the right of
copyright
c New ©ethods of Creating New Works
oc The list of works expanded over the years and in #$% the act was overhauled and instead of listing types of expression it set forth
broad categories of content
oc Literary works
oc ©usical Works ʹ including accompanying words
oc uramatic Works ʹ including accompanying music
oc Pantomimes and choreographic works
oc Pictorial, graphic and sculptural works
oc ©otion pictures and other audiovisual works
oc Dound recordings
oc Architectural works (added in 1990)
c New Technologies for uistributing and Copying Works
c Legal Responses to New Technologies
oc xtended the public performance rights and created a compulsory license for those who prepared mechanical sound recordings of their works (#&#)
c This was really expansive even though it was shorter in duration
c Included a renewal process
oc Lead to the #$%' which defined five exclusive rights of copyright owners which included the creation of derivative works and also created the idea that copyright protection happened as soon as a
works was fixed in a tangible medium of expression
c The Copyright Legislative Process
oc The process by the Copyright Office and Congress negotiated compromises among those with an economic interest
oc Jessica Litman: thinks that this process is bad because the private industries are choosing the legislation and maybe smaller interests are going to be lost
c The Copyright Industries
c New Challenges
c
Rationales Copyright Protection
c £tilitarian Incentives/Instrumentalist Rationale
oc For what purpose? Progress? What counts?
oc How much protection? What will provide the right incentives?
c What incentives are necessary.
oc Is inducement needed in fact?
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c How come the Chinese produced lots of art in the 15 century despite anti-copyright norms
c Closer to home, won͛t Picasso paint and Dcorsese direct even if there is no copyright protection?
ac Will they paint or direct as much?
ac Will protection affect the nature of their work?
ac Are they the only players whose incentives we need to address? If not, who else͛s incentives count?
oc Have to consider the other players ʹ the industries that rely on the monopoly of the copyright that these artists create
oc But Breyer says that you don͛t͛ have to worry about the publishers because the only economic incentive they need is the lead-time advantage
c But this isn͛t really correct because movie houses rely on the blockbusters to make their money and people can just watch movies online that are also in the
movie theatres
oc Key Issues of the Inducement Theory
c uoes the IT help us figure out what the optimal level of protection
c How do we define the level of protection that will induce the optimal level of creative production?
ac uifficulty 1: how do we define the socially optimal level of creativity? uo we need to?
ac uifficulty 2: how do we assess what is the minimum level of protection necessary to induce such output so we don͛t over-protect? Can we do so with empirical certainty?
ac uifficulty 3: instability ʹ new uses and new technologies continuously force us to reconsider the balance
oc If inducement is necessary then why is protection limited?
c Constitution͛s limited times means that the public domain is a central part of American copyright, along with protection
ac Key Point: protected works ultimately become a source of creativity for future generations
c Why? If we need protection in order to induce creation, then why should it be limited?
ac Cost
ac Risk of suppression
ac Nature of creativity
Copyright Paradox
c We permit monopoly in order to benefit the public by insuring access to all sorts of author͛s works
c But we simultaneously limit monopoly because of the worry that the monopoly will itself harm the public by limiting its access
c Fundamental question that the incentive rational can͛t itself answer ͞how much͟?
Natural Rights/Author͛s Rights Rationales for Copyright:

c uropean theory of copyright
c Non-instrumentalist approach ʹ authors are entitled to the exclusive use of their creative work as a moral matter
c Protection of copyright is protecting the dignity of the author herself ʹ the creative work protected as a manifestation of the author͛s being
oc Alternative strand: author͛s labor gives rise to ownership of tangible property
c Key focus: individual author (rather than public)
uifficulties Posed by Author͛s Rights Theories

c What is individual authorship? Is ͞the author͟ dead?
oc Authors are making small changes to works done before them in their area and movement. ʹ so you owe to all these people that came before you
oc The author is dead ʹ a meaning of a book is established by the readers not by the author ʹ the relationship between the reader and author ʹ the author is dead and the meaning is what the readers read
into the book
c How about corporate ownership?
c What͛s so ͞yourself͟ about your ͞stuff͟? £ber-commodity fetishism?
c Why should creators get value for their labor in this context rather than any others?
c Bottom line worry: potentially undue authorial control (Think about The Wind uone Gone)
Theoretical £nderpinnings of Copyright Law ʹ what the book focuses on

c Incentives for authors and publishers ʹ traditional points
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c Authors͛͛ rights ʹ traditional points
c A robust public domain ʹ it is about the access for the public of the robust public domain
c An uncensored marketplace of ideas ʹ the idea of copyright protection should be seen as the engine of free expression
c Levi thinks that you cannot place this as a zero sum game ʹ the question is how much protection and neither way can answer on its own
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c The £D copyright law used to exclude foreign authors from protection
c 1891 ʹ extended protection to foreign authors if their home countries gave comparable protection to £D authors ü national treatment
c £ntil 1896 ʹ the ©anufacturing Clause stated that foreign works had to be printed in the £D
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c The £D didn͛t sign the Berne Convention for over 100 years ʹ it didn͛t want to relax the formalities it imposed with the Berne Convention provided ʹ also provided protection for some works that the £D didn͛t
c The Berne Convention Implementation Act of 1988 ʹ made on the changes that were absolutely necessary to qualify for membership
c No enforcement mechanism
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c Pushed by the £D ʹ it is with the view that IP protection is a trade issue
c stablishes minimum universal substantive standards for the protection of IP
c Includes most favored nation treatment
c Incorporates the Berne Convention standards ʹ but does not require recognition of moral rights
c Life + 50
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c World Trade Organization
oc Responsible for administering the multilateral trade agreements concluded in the £ruguay Round
oc Forum for negotiations for member states in the uispute Dettlement £nderstanding (uD£)
c WIPO and the 1996 WIOP Treaties
oc Formed under the Paris Convention for the Protection of Industrial Property
oc Dponsored two treaties designed to address copyright protection
Complexities ntailed by Internationalization

c The growing role of international treaties and institutions
oc Dhift in £D position from literary pirate to promoter of global adherence to copyright norms
c vidence: membership in Berne Convention, central role in TRIPD
c Limits: minimum standards for Berne implementation
c Dignal importance of WTO as interpreter and enforcer of international copyright agreements
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TH L©NTD OF COPYRIGHTABL D£BJCT ©ATTR
Congress is granted with the power to decide what works can be protected by copyright ü broad leeway (but not infinite) to the definition as policy
conomic Costs to the xclusive Right of Copyright:

The Congress shall have Power . . . To promote the
c Costs of Administration and nforcement
Progress of Dcience and the useful Arts, by securing for
c ueadweight losses that result because creators have to price above the marginal cost of their works ü which will exclude some customers
limited Times to Authors and Inventors the exclusive
oc Limits the dissemination of the knowledge which could provide the basis for further progress
Right to their respected Writings and uiscoveries.
§ 102 Dubject matter of copyright: In general £D Constitution, Art. I, §8, cl. 8

(a) 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. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated,
or embodied in such work.
Requirements for Copyrightable Dubject ©atter
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c ©ost countries͛ laws do not contain a comparable provision ü urope just says something that can be perceived by others
c The Berne Convention leaves the decision about whether to require fixation to each of the member countries
c WIPO and TRIPD don͛t mention it
c Why do we have a fixation requirement?
oc We look to more of a utilitarian view of the use of copyright and in order to foster progress we need to have something in a fixed form to claim an ownership
oc urope͛s unrecorded performances would be protected but not here ʹ we don͛t protect live performances
oc Is a good or bad idea to not provide protection for live performances?
oc There are different norms that some groups have created to bargain for more or less contract terms.
oc *!++,!-!),,!.
c xclusive right to the writings ʹ it doesn͛t say that an author has a right to his story idea ʹ just the writing that she has created
c You could make an argument that there is no fixation requirement if you define writings as something that isn͛t necessarily fixed
c What happens when the fixation only fixed to other computers?
c What happens when you extend fixation to new technologies?
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c w&/*0,)1 ,2+3,!!4,567+,7 28*)),!/-!,)75+,7!,!'89*8-!*'*+"59*!+*--*,9 --*",)) ,',!698*7!!*)568*7,,5
8*',:+"*8*+'+"*-*/,)'77!,'+ *8*,+ 7*-!*!),*9+*,!/*0'!),),!4 )!+)",74)"*5-"-*5,!4*!)7,+",)1 ,2+3 *8*8)) -,),6,
,2,! -/*0,)5,!47+),76!)69/,-,)*!)7,)),!
c The means to fix doesn͛t matter ü look to the effect produced
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c In 1909 Act ʹ Congress responded to à
where a player piano roll was found to not be a copy since the idea of a copy was only an intelligible to a human ʹ the piano communicating with the
piano itself which is not communication to a human ü thus a special statutory provision was created that subjected mechanical reproductions of musical works to compulsory license.
c 1976 used the fixed definition since the 1909 became difficult with the change of technologies
c 1976 also extended to unpublished works
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COPYRIGHT PROTCTION TNuD TO I©AGD IN VIuO GA©D
P video game manufacturer sued a competitor for selling an exact copy of the game

rd Artic argued that the audio visual effects were not fixed since they change from the users activity
3 Cir. (1982)
[48]
c Held: Copyright protection extends to images in video games since the features repeat themselves over and over and are sufficiently permanent to be considered more than transitory
c ©emory of a Computer Game satisfy the statutory requirement of a ͞copy͟ in which the work is ͞fixed͟
͞Copies͟ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term ͞copies͟ includes the material object, other than a phonorecord, in which the work is first fixed.
͞Phonorecords͟ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be
perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ͞phonorecords͟ includes the material object in which the sounds are first fixed.
c Neither of these definitions has the ͞by of under the authority of the author͟ language that the fixation definition contains
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LOAuING COPYRIGHTu CO©P£TR DOFTWAR ONTO A CO©P£TR͛D RA© CRATD A COPY THAT ID D£FFICNTLY FI u £NuR TH COPYRIGHT ACT
©AI is a software co. and Peak are technicians

th uistrict court granted summary judgment in favor of ©AI for copyright infringement for Peak running ©AI software licensed to Peak customers
9 Cir. (1994)
[51]
c Held: the loading of the software by Peak into the RA© was a copy because it could be ͞perceived, reproduced, or otherwise communicated͟ and is a violation of ©AI͛s copyright ʹaffirmed the district court
c This is a stinky case ʹ ©AI could have just contracted with its customers that it would do the service ʹ instead of letting Peak make a business off of service ʹ the court probably should have advised ©AI to protect
their work through means other than copyright law
c This case piggybacks on the fact that a copy was made ʹ which then makes fixation ʹ that is a backwards definition of fixation
c If these cases had come out the other way then there would have been a much larger public domain ʹ the fixation requirement would have been a little bit more than just a momentary fixation

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c From the fixed definition: /*0'!),),!4 )!+)",74)"*5-"-*5,!4*!)7,+",)1 ,2+3 *8*8)) -,),6, ,2,! -/*0,)5,!47+),76!)69/,-,)
*!)7,)),!
c Broadcasting: fixation contemporaneous with transmission
c Live content transmission should be regarded as fixed ü assuming copyrightable as ͞motion picture͟ or ͞sound recording͟
c What about a live performance that isn͛t being transmitted but being recorded ü depending on how you read the second sentence ü the recording can be a fixation of the work being performed but Nimmer argues
that the language sets forth the only circumstances in which the simultaneous recordation concept can effect fixation
c Caused bootlegging and it wasn͛t illegal since the live performance did not have copyright protection
c 1994 ʹ Congress amended the act for the TRIPD agreement which required protection for live musical performances ʹ Dection 1101(a)
oc *-,5,)- ,2,!**!)7,)),! 6,:7),'68* *7!'/,--'!)! -8* *7*)!+6)8*-,5,)-*8*+',!*+,)*,5,! '8,)*8-!*'*+) !
!-*,<+ ,2,! 6,:7),'68* *7!'
c Bootleg Recordings: section 1101(a) enacted in response to TRIPD
oc Problems ü there is no duration limit in 1101! & is specifically adopted to avoid the fixation requirement
oc £© in 1999 ʹ Constitutional challenge to the amendment since a live performance isn͛t fixed ʹ why should it be protected ü the court concluded that it was a valid exercise of Congress͛
commerce power
oc å

: unlikely that Congress had the power pursuant to the Copyright Clause to adopt §1101 but concluded that the Commerce Clause empowered Congress to
adopt that provision
oc £©
(2007): because the law was not given its authority through the Copyright Clause then its limitations did not apply and the provision was a lawful exercise of the Commerce Clause
authority
c It͛s okay to do something under the CC so long as it͛s not creating a right that it didn͛t have under the Copyright Clause
c Is this something that is ͞Copyright Like Right?͟
c
c uoes it violate one or more specific limits of the Copyright Clause
c If 1101 is unconstitutional then the £D is in violation of TRIPD!
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c £rantia Foundation v. ©aaherra: civilization based on a religion ü uploaded the tenants of the religion to a website and the £rantia Foundation tried to sue for copyright infringement ü but are they actually the
author ʹ or is God?
oc The work is in a question and answer format ʹ and the foundation created the questions and God gave the answers
oc But is there an argument that the Gods actually placed those questions in the head of the foundation?
118 Yale 186 ʹ Copyright
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c Requirement for copyrightability to be an ͞original work or authorship͟
c Berne and TRIPD do not impose such requirements of originality or creativity ʹ they just assume authorial presence
c 1976 used the term ͞original works of authorship͟ and was purposefully left undefined and just incorporate without change the standard of originality established by the courts under the 1909 Act
c uoes NOT include: novelty, ingenuity, or esthetic merit
c ©eaning has varied over time
oc First associated with fine arts ü but actually maps and charts
Three plausible standards for copyright eligibility:

c Originality, in the sense of independent origination or non-copying
c Creativity , in the sense of some modest level of imagination or escape from the commonplace
c Novelty or invention, in the sense (like a patent) or a leap beyond prior art that would not be obvious to a person skilled in that art
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ORIGINALITY RQ£IRD ©OR THAN ©R INuPNuNT CRATION ʹ B£T NOT ©£CH ©OR

Originality is a Constitutional requirement
Dupreme Court (1991)
[58]
c Held: telephone white pages directory lacked the minimal originality necessary to qualify for copyright protection
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c Copyrightability of Photographs
oc Constitution permits Congress to protect photos with copyright ʹ ͞so far as they are original intellectual conceptions of the author͟
oc Justice ©iller says he is not ruling on the copyrightability of the ordinary production of a photograph
oc Why was this studio photograph protectable?
c Views of Originality
oc Authorship: one view was a new conception of originality ü authorship rather than originality and the other was more original in that there was more creativity and novelty in the final product
oc As originality became more and more of a lower standard the judges began talking about it more and more as a category (even though the content became less significant)
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ODCAR WILu: PHOTOGRAPHD VIuNCING ORIGINALITY ANu CRATIVITY IN FAT£RD D£CH AD DLCTION OF CODT£©D, POD ANu D£CH AR COPYRIGHTABL
Dupreme Court (1884) Darony is the photographer and had secured a copyright on ͞Oscar Wilde No. 18͟ and burrow-Giles sold 85,000 copies. Darony sued for copyright infringement and
[59] was awarded damages
On Appeal: Burrow-Giles argued that copyrights cannot be granted for photographs because they do not fall under authors or inventors
c (©ILLR) - Held: photographs can be copyrightable as the ͞writing or production͟ of an ͞author͟ ü this was copyrightable
c Follows from charts, maps, engravings, cuts, etchings and so on ʹ the photograph is like this
c Here the photo obviously possessed the characteristics and was copyrightable ʹ Affirmed
c xpansion of the notion of copyrightü the process of creating the work seems to play some sort of role in determining a protectable copyright
c The Court adopted the findings of fact:
c
oc The photo was ͞useful, new, harmonious, characteristic, graceful͟ and
oc Darony made the picture from his mental conception (in posing, costume, drape, and accessory arrangement, light and evocation of desired expression)
c How does the ͞ordinary photo͟ differ from Darony͛s?
c Dome people have thought that this case was decided in part by a new conception of originality ü focused more on authorship (with a map ʹ how original can you possibly be?)
c Notes:
oc Photographs are copyrightable
oc Do far as they are original intellectual conceptions of the author
oc What does ͞original͛ mean? How high a standard?
oc Dince photography is really a technical medium then the question becomes whether there was enough original content
oc ©iller wouldn͛t have found a candid photo to be creative and the subject himself is not copyrightable
oc What if your process is very thoughtful but the outcome happens to be same as the other persons
c The court is not just buying into the process but looking at the work itself ü some sort of an aesthetic judgment
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CIRC£D PODTRD: CHRO©OLITHOGRAPHD AR NTITLu TO COPYRIGHT PROTCTION VN IF uDIGNu FOR AuVRTIDING P£RPODD
Dupreme Court (1903) Wallace hired Bleistein to produce 3 chromolithographs for advertisement of his circus. uonaldson produced reduced three of them and Bleistein sued for copyright
[62] infringement
uonaldson won a directed verdict that was upheld on appeal because of the advertisement and not fine arts
c (HOL©D) Held: works are not less connected to the fine arts just because they can be used in advertising
c There might be questions of Wallace͛s right to the pictures ʹ but that is for a jury
c Bleistein Nondiscrimination Principle: dangers of requiring judges to evaluate aesthetic merit
oc It would be dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits͟
oc What are the ͞narrowest and most obvious limits͟
c The court also notes that the work must be important because the u copied it and it is widely sought after ü since it is important than it must be copyrightableü market-oriented, anti-subjective approach
c HARLANu ʹ the Constitution only has this protection because we want to promote progress and only when there wouldn͛t be any other way of getting this work without the monopoly ʹ but you will get this work
because of the commercial demands ü you will get advertisement regardless of the copyright
c What does the following statement in Bleistein do the originality notion?
oc Bootstrap: that these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the P͛s rights
c Open Territory: how far will the definition of originality go?
uada ©ovement: uuchamp ʹ the urinal piece as a joke

c His piece got rejected from the competition and showed that the show was commercial and not cutting edge at all
c Furry Teacup ʹ this is what the nondiscrimination principle leads to
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THR ID A uIFFRNC BTWN PROTCTING TH I©AG OF A PHOTO ANu PROTCTING TH D£BJCT ©ATTR
D.u.N.Y (2006) ©annion is freelance photographer of portraits and did a job for DLA© basketball magazine of Kevin Garnett which was printed in the uec. 1999 issue
[D£PP 350] In 2001 ʹ Carol H. Williams Advertising (CHWA) developed an idea for a billboard using the photo and gained Garnett͛s permission for its use as a mock-up
Coors had a new photographer take a similar shot and concept but with more extreme cropping ͙.©annion brought this action for infringement
c Held: there was a copyright in the original
c Protectable lements of Photographs: rendition and timing ʹ protects the image but not others from doing the same / creation of subject ʹ copyright can extend to the subject
oc Rendition: originality not of the object but of the angles, lighting, exposure, effects ʹ not but it is depicted
oc Timing: being in the right place at the right time ʹ the image exhibits the originality ʹ not the underlying subject
oc Creation of the Dubject: the photographer can create the scene or subject to be photographed
c Originality of the Garnett Photo
oc ©annion did orchestrate the scene ʹ and the individual components cannot be separated from the whole ʹ which is original
c Notes:
oc uo these elements help to find originality or does it lower the bar?
oc Clearly there was copying and the question is whether there was going to be copyrightabilityü does this go beyond what Holmes considers copyrightability?
Note on Nonobviousness and Originality

c The Copyright Office does not compare applications like the Patent Office
c Patents require a nonobviousness advance, novelty, and utility
c Laureyssens v. Idea Group: can͛t compare a copyright to a patent ʹ the puzzle pieces were independently created and had a degree of creativity thus they were copyrightable ʹ IGI still won ʹ their puzzles were
substantially different from Laureyssens
c

pp
Question: should reproductions of public domain art be considered sufficiently original?
Copyright Originality ü what is the minimum degree of creativity required for copyrightability?
%
è& º
A COPY OF DO©THING IN TH P£BLIC uO©AIN ©AY ITDLF B COPYRIGHTu IF TH A£THOR THROF HAD CONTRIB£Tu DO©THING OF HID OWN THRTO, THAT
2nd (1951) ID, ©OR THAN A TRIVIAL VARIATION ü POINTD TO PROTCTING TH COPID OF I©AGD IN TH P£BLIC uO©AIN
[67] Bell made mezzotint engravings of old masters paintings. Catalda used a lithographic process to produce copies of Bell͛s engravings. Trial court found that there was a
copyright infringement ʹ Catalda argued that the engravings were uncopyrightable because they were of old masters and lacked the requisite originality
c Held: the copies had originality from the author in determining the subtleties of the engraving process and thus is copyrightable ü it was more than a ͞mere trivial͟ variation
c Domething recognizably ͞his own͟ in this context means ͞little more than a prohibition of actual copying͟
oc In the case of maps ʹ later works will be anticipated and still meet the requirements for copyrightability
c Catalda deliberately copied the mezzotints and are infringers and copyright confers the exclusive right to copy the copyrighted work ʹ a right not to have others copy it
c NOT THAT THID WAD BFOR FIDT ü TOuAY THID WO£Lu PROBABLY NOT B COPYRIGHTABL
è

#

# '
COPYRIGHT PROTCTION ID NOT AVAILABL FOR ACT COPID OF WORKD OF ART IN TH P£BLIC uO©AIN ü PR©ITD COPYING OF I©AGD OF £NuRLYING WORKD
THAT AR IN TH P£BLIC uO©AIN

Bridgeman (P) held the rights to market reproductions of art owned by museums and other collectors but no longer under copyright protection ü Bridgeman
D.u.N.Y. (1999)
reproduced Cus of the works
[70]
Corel (u) markets software that included the same digital works
Trial court entered summary judgment for Corel
c Held: copies of works in the public domain do not get copyright protection unless there is a ͞distinguishable variation͟
c A ͞slavish copying͟ does not get protection
c A distinguishable variation cannot be just a change in medium
Why should the technology of the reproductions matter? Why should originality in one medium be the same level of originality in another? uoes the process matter?
uan Burk: ©ethod and ©adness in Copyright Law: if the intent of the copiers under Bell were to create faithful reproductions then perhaps it shouldn͛t be copyrighted and the outcome in the case was perhaps due to
rewarding Bell͛s labor
Indeterminacy of the Process ʹ another theory in the basis for reasoning in copyright cases
Assessment:
c How does the copyright standard compare with other areas of intellectual property?
c What͛s the impact of a low standard of originality?
c Dhould the copyright standard of originality be heightened
p > p p

§102(b) In no case does copyright protection for an original work of authorship extend to any ,+, 8*'+*"8*'))")9)7"7-+ 8*,!"'!'8"8*,!',86"*+,)':*9" regardless of the form in which it is
described, explained, illustrated, or embodied in such work.
§102(b) has two purposes:

1.c To define the line between what is eligible for copyright protection and what belongs to the public domain
2.c To define the line between copyrightable and patentable subject matter
xclusions: ideas, utilitarian works, facts, systems/processes
This idea is also contained in the Berne Convention, TRIPD, and WIPO
c
Both economic and non-economic approaches to copyright view the items listed in 102(b) as basic building blocks of copyright expression, and hold that granting copyright in these items would be counterproductive
The idea/expression distinction came way before Baker v. Delden but people use the concept for what is exemplified in the case.
c The concept is not definable ʹ it is just a metaphor ʹ not a definition
c Policies boundary between copyright and patent
c nsures robust public domain where others scan use same ideas and create other expression
IuA (noncopyrightable) ü -------- ---------- GRAY ARA ----------- ------------- ü PRDDION (copyrightable)
p p
è
TH PROTCTION AFFORuu BY A COPYRIGHT ON A BOOK PLAINING AN ART OR DYDT© TNuD ONLY TO TH A£THOR͛D £NIQ£ PLINATION ANu uOD NOT
Dupreme Court (1897) PRCL£u OTHRD FRO© £DING TH DYDT© OR TH FOR©D NCDDARILY INCIuNTAL TO D£CH £D
[73] Delden copyrighted a book that contained a system of accounting with special forms. Baker began selling forms with differently arranged columns and headings that
achieved the same result
c Held: a copyright on a book explaining an art or system does not preclude others from using the system or forms contained in it
c A copyright on a system or forms would be a patent-type protection without requiring the showing of novelty ü the copyright protects the explanation of that system
c Interpretations of Baker: multiple lines of authority derived from Baker:
oc Blank forms are not copyrightable ʹ but this isn͛t want it really held
oc Functional Works ʹ the form itself is designed to achieve a function
oc ©erger uoctrine ʹ when there is something that can only be expressed in one way or a few ways then we make a social policy decision to say that the expression and the idea have merged
oc Non-Copyrightability of Dystems
*4* ©orrissey v. Procter & Gamble: instructions for a sweepstakes contest couldn͛t be copyrighted ü if there are only a limited number of ways to express an idea ʹ the idea and expression merge into an
uncopyrightable whole
c Or offer a ͞thin͟ copyright ʹ so thin that only an identical copy is infringement
c some see this as a defense to infringement rather than a bar to copyright at the outset
§ 202.1 ©aterial not subject to copyright.

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: )
(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere
listing of ingredients or contents;
(b) Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing;
(c) Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are
designed for recording information and do not in themselves convey information;
(d) Works consisting entirely of information that is common property containing no original authorship, such as, for example: Dtandard calendars, height and weight
charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources.
!')!+- 56,'7,!
c International News Dervice v. Associated Press: no property right in the news but there was a ͞quasi property͟ right against IND
c Feist Publications v. Rural Telephone: there was copyright in the compilation of facts
pp
( £

INTRPRTATIOND OF HIDTORICAL VNTD AR NOT COPYRIGHTABL
nd
2 Cir. (1980) Hoehling wrote a book about the Hindenburg advancing a theory of sabotage. ©ooney wrote a similar book ten years after but more fictional and the book rights
[80] were sold to £niversal Dtudios.
c Held: factual information or interpretations of history can be subject to copyright üHoehling͛s theory was based on historical facts and are not protected
c Included that stock narrative bits are not copyrightable as well ʹ like common cultural phrases or locations for story plots ü scenes a faire
c

$ '$ $ TA ONO©Y ü CLADDIFICATION G£IuD AR ORIGINAL WORKD OF A£THORDHIP, NOT RCORuD OF PROCDDD OR DYDT©D, ANu AR TH£D NTITLu TO COPYRIGHT
PROTCTION

th American uental Association created the Code on uental Procedures and Nomenclature that included a numbering system of dental procedures
7 Cir. (1997)
uelta argued that the code is not copyrightable subject matter and the district court granted summary judgment in its favor because it catalogs a field of knowledge
[86]
c Held: classifications require creativity and are original literary works that may be copyrighted ü the level of originality required is low and is met here
c Facts do not supply their own principles of organization ü classification is a creative endeavor
c The Code is not a ͞system͟ as stated in the copyright act that does not receive protection ü it is a taxonomy which can be put to many uses one of which may be or include a system but it itself is not
c Dection 102(b) doesn͛t allow AuA to sue a dentist for using the Code in her files or for uelta to use the Code in its medical forms but it stops uelta from copying the Code itself or to make and distribute a derivative
work based on the Code
] pp pp
§ 103 Dubject ©atter of Copyright: Compilations and uerivative Works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in )
which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. At what point does a derivative work become
a copyrightable work in its own right?
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the Copyright protection does not extend to any
scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. part of a compilation or derivative work in
which underlying copyright material ͞has been
used unlawfully͟
pp
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original
work of authorship, is a "derivative work". (101)
c The international community provides protection for derivative works but just hasn͛t adopted that specific language
#è &

A RPLICA OF A WORK NOT D£BJCT TO COPYRIGHT PROTCTION ©£DT B ©OR THAN A ©R COPY TO GAIN COPYRIGHT PROTCTION
nd
2 Cir. (1976) Dnyder obtained a copyright on a plastic £ncle Dam bank that was a replica of an antique cast iron model in the public domain.
[91] Batlin also made a replica and made a suit to enjoin the enforcement of Dnyder͛s copyright after the £D Customs Dervice refused entry to a shipment of Batlin͛s banks
Held: although originality is low a replica must be more than a copy to gain protection and some degree of skill must be demonstrated to make the reproduction copyrightableüthere has to be more than a minuscule
variation
c The reproduction must contain ͞an original contribution not present in the underlying work or art͟ and be more than a mere copy
c This seems to protection against what the court calls ͞harassment͟ that could start happening from people to just make very small changes to copyrighted work and pass it off as their own ü also issues with offering
copyrightability too easily and then there would be many questions as to which copyright the copy has been made from ʹ what exactly would it be infringing
c Also if you just take a public domain work and add something small to it ʹ then there doesn͛t seem like I͛m really doing enough to meet a copyright standard anyway
uissent: even inadvertent variations to a work in the public domain can form the basis of a valid copyright ʹ courts should not dwell on the purpose for such changes, be they aesthetic or functional

"
INFLATABL 3u COND£©D BADu ON COPYRIGHTu CARTOON CHARACTRD AR NOT D£FFICINTLY ORIGINAL TO B COPYRIGHTu AD DPARAT uRIVATIV
WORKD
"
"

th RG designs and makes inflatable costumes that are purchased by third parties to promote their products
9 Cir. (1998)
RG and Genesis agreed to market RG͛s costumes and then Genesis went into contract with RG͛s competitor and RG sued
[94]
Held: when considering the originality of costumes based on copyrighted cartoons, any differences based on functionality or mechanics should not be considered
nd
c £sed the uurham test from the 2 Cir.:
oc Original aspects of a derivative work should be more than trivial
oc ©ust not affect the scope of any copyright protection in the existing material
c uoran v. Dunset House ü distinction between copyrightability of derivative work based on non-copyrighted work in the public domain and a derivative work based on a preexisting copyrighted work
c
oc If derivative work is based on work in public domain ü proper test for copyrightability is whether the form of the original work is that of the derivative work differ sufficiently ʹ if yes, derivative is
copyrightable
c What standard of originality applies to derivative works? (note 1 on 96)

c Both Batlin and RG are anxious to avoid giving the first creator of a derivative work ͞a de facto monopoly͟ on all subsequent derivative works
c (#
()*+++): photographs of ornamental picture frames prepared for catalog
oc Court discussed a prior case that found a photograph of an object was not a derivative work but it relied on the fact that the bottle itself was not copyrightable
oc A derivative work must recast, transform, or adopt the authorship contained in the preexisting work
oc A photograph of Jeff Koons͛ ͞Puppy͟ sculpture in a park merely depicts that sculpture and does not recast, transform or adapt the sculptural authorship ʹ so it is entirely different and separate from the
authorship of the sculpture
c © ©
),--./0 rejecting the argument that harmony simply expresses ͞common musical vocabulary͟ and holding that whether a particular harmony manifests sufficient originality to be copyrightable is
a question of fact
c ©
# 1
)*++*/: found a translation of a Hebrew prayer book to be copyrightable because the process requires exercise of careful literary and scholarly judgment

TH OWNR OF A COPYRIGHT HAD TH CL£DIV RIGHT TO PRPAR uRIVATIV WORKD BADu ON TH COPYRIGHTu WORK
th
7 Cir. (2000) Prince has referred to himself as a symbol taking it as his trademark and having copyrighted it as a visual art.
[98] In 1993, Pickett made a guitar in the shape of the Prince symbol and showed it to Prince ʹ Prince was then seen using a guitar in his shape.
They both sued each other
Funny thing is that the symbol was a public domain image so Prince created a derivative work
(PODNR) Held: the copyright act grants the holder of a copyright the exclusive right to prepare derivative works which does not allow infringement on the copyright of the original
c ven if Pickett͛s guitar can be considered original, it could not have been made without Prince͛s authorization
c Pickett argues under 103(a): protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully ü reads this as
only forbidding him from infringing the original
c If there is something that is original about the copyrighted work itself that goes beyond what it has taken without protection ʹ then that should be copyrightable
c The people who write to book suggest that makers of derivative works goes so far beyond what the original work was to grant it copyrightable and does not need permission
c But most people go with Posner͛s interpretation (page 99 note 2)
c This is a perfect hypo for a law school exam
c You have a derivative work and if you read the way that Posner does ʹ then the derivative work person needed protection ʹ but you could argue that the derivative work is so far copyrightable in itself that it finds
that the copyrighted elements amount to fair use and the person does not need permission
c Can the derivative work gain copyright protection? The funny part is that the whole definition of derivative works includes that it is a variation of something original
c One of the reasons to have a higher standard of originality is that if you don͛t then you͛re going to have too much of a mess during trial ʹ it will just be hard to keep track of
!6'0,!4 !)
c A preparer of a derivative work has no rights in that work unless it was prepared with the copyright owner͛s permission ü efficiency-based explanation for this rule ü it is necessary to avoid uncertainty as to the scope of
the copyright owner͛s rights
c Patent system is different for allocating rights in initial inventions and subsequent patentable improvements ʹ the secondcomer who invents a patentable improvement may apply for and receive a patent regardless of
whether the first inventor authorized the improvement
c The first and improver hold ͞blocking patents͟ since the improver may not practice his invention without permission from the first and the first cannot cannot practice the improvement without permission from the
improver ü usually a cross-licensing agreement happens
oc This creates efficiency since it encourages the first patentee to bargain with improvers and avoids holdout costs
pp
A ͞compilation͟ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of
authorship. The term ͞compilation͟ includes collective works. (101)
c ͞selection, coordination, arrangement͟ ʹ could be ͞every͟ directory of every shoe store, or ͞best͟ directory of all the best shoe stores
c What about the directories that are valuable because they are complete and comprehensive?
c The standard of originality in Feist ʹ does that make it hard or easy for these complete collections? ü it seems that something that is incomplete is easier to copyright than something comprehensive
c The whole becomes more than the sum of its parts ü the information could be uncopyrightable but the compilation of it is
c What happens if the selection of info is creative but the arrangement of it is not?
c Jane Ginsburg: usually, such claims are pretextual in fact compilations ʹ she thinks Feist is wrong
A ͞collective work͟ is a work such, as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole
c
c Berne Convention provides protection for collections while TRIPD provides protections for compilations
nd th
c Dweat of the Brow ʹ 2 found that it existed and 7 found that it did not ü which lead to Feist in the Dupreme Court
º
FACT CO©PLIATION: TO B COPYRIGHTABL, A WORK ©£DT B ORIGINIAL TO TH A£THOR ANu PODDDD AT LADT DO© ©INI©AL uGR OF CRATIVITY
Rural published a telephone directory (P) and Feist (u) published specialized area-wide telephone directories

Feist approached 11 northwest Kansas telephone companies and offered to pay for the right to use their respective white page listings and Rural refused so Feist used
them anyway. However, Feist listings included each individual͛s street address and most of Rural͛s did not
[101]
Rural sued and district court granted summary judgment and COA affirmed ʹ Feist appealed
(O͛CONNOR) Held:
c Originality as constitutional requirement
c Rejection of sweat of the brow ü the Constitution rejects this concept
c Low level of originality required for complications
c ͞entirely typical͟ ͞garden-variety͟ white pages т original enough
c Facts are not copyrightable but compilations of facts generally are
c Facts meet the constitutional minimum for copyright protection if it features an original selection or arrangement
c Rural͛s telephone directory did not have a sufficient amount of creativity to make it original thus Feist͛s use of the listings cannot constitute infringement
c Copyright rewards originality, not effort
"

£
NON-FACT ©ATRIAL: WORKD DHO£Lu B CONDIuRu AD WHOLD WHN uTR©INING WHTHR THY AR ORIGINAL ANu COPYRIGHTABL
th
9 Cir. (1970) Roth (P) produces and distributes greeting cards and brought a copyright infringement action against £nited (u)
[106] Trial court viewed the cards in terms of their separate components considering text and artwork in isolation and found the artwork copyrightable but not infringed and
the text not copyrightable
Held:
c The greeting cards should be viewed as a whole ʹ artwork and text together in ͞total concept and feel͟
c Of significance was the artwork and text in association with each other and viewed in this way is copyrightable as wholes and the same concept and feel captured by another would be infringement
uissent:
c The text and artwork are separate elements and copyright protection should not extend where neither have been infringed ü this conclusion results in the whole becoming substantially greater than the sum of its
parts
c uissent might be against protecting Roth͛s profits
c The other side is that Roth didn͛t create ͞cutsie͟ - the public did and that is the authorships ʹ not in Roth
c Is the standard for originality lower if a court finds a compilation?
c Is ͞total concept and feel͟ approach appropriate?
c Why copyrightable in Roth and non-copyrightable in Hoehling?
c If copyright did not protect compilations, would these works be considered copyrightable under 102(a)?
c If judges shouldn͛t be determining what is art then does this notion of ͞total look and feel͟ violate the non-discrimination doctrine
©©
$ CO©PLIATIOND OF PICTORIAL INFOR©ATION GAIN ORIGINALITY D£CH AD TO ALLOW TH© TO B COPYRIGHTu IF TH DLCTION, COORuINATION, ANu
th
5 Cir. (1992) ARRANG©NT OF TH INFOR©ATION uPICTu ID D£FFICINTLY CRATIV
[108] £sing public records, ©ason (P) created and published real estate ownership maps for ©ontgomery County. Landata (u) purchased ©ason͛s map and by moving the
info around and updating the info created its own maps.
©ason used and district court found that ©ason͛s copyright was limited to the actual maps he created
©ason appealed arguing that his copyright protected his idea to create the maps based on legal information and the expression of that idea in different ways
Held:
c The selection of info and the coordination and arrangement of that info can render a map based on public info sufficiently original as to merit copyright protection
c ©ason͛s maps were sufficiently creative to make them original complications
th th
uarden v. Peters (4 2007): P took £D census map and added color, shading and fonts ʹ the copyright office rejected the application for copyright and the 4 cir. agreed that it lacked a minimum level of creativity ü however
uarden also had stated in the application that it was a derivative work that was based on a preexisting census map
c
WHO ID AN A£THOR?
§ 201 Ownership of Copyright

(a) Initial Ownership.Ͷ Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of )
copyright in the work.
(b) Works ©ade for Hire.Ͷ In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of
this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
c ©any other countries do not recognize employers as authors and only natural persons as authors
c Berne, TRIPD, and WIPO Treaties refer simply to ͞authors͟ and does not specify how it is defined
c Conceptions of Authorship in other Countries:
oc urope ʹ there is no such thing as copyright ownership by a corporation ʹ it cannot have moral rights
oc £D ʹ much of copyrighted work is actually works for hire ʹ a very large proportion of valuable copyright are works for hire
oc ueveloping Countries ʹ ownership of copyright has a lot of spiritual connotations and community authorship ʹ no conception of a sole author
When do problems arise?

c 1. I get someone to help me achieve what I want to do, but it͛s in a medium I͛m not terribly familiar with
c 2. I create the work pursuant to employment
c 3. The work is created through some kind of collaborative effort between me and some other people
oc Issues
Three kinds of authorship recognized in 76 Act:

ac Dole authorship
ac Joint authorship
ac mployer authorship aka ͞works made for hire͟
oc mployer is deemed to be author except if otherwise agreed in written instrument
Conceptions of Authorship
ac uropeans (continental) think about authorship as a romantic individual authorship notion, so is in contention with American view which gives authorship with economic
oc Corporations cant own copyright in uropeͶcopyright cant vest in a coroporate owner cuz of copyright seen as the individual sole of person expressing themselves
ac £D
oc Has economic component
ac ueveloping countries
oc No individual authorshipͶseen as communal
p
c The Copyright Act does not define ͞author͟ ü is a definition necessary?

c
# à
AN INuIVIu£AL WHO RCIDD A HIGH uGR OF CONTROL OVR A PHOTOGRAPH ©AY B CONDIuRu TH ͞A£THOR͟ VN WHN THAT INuIVIu£AL uOD NOT
PHYDICALLY DHOOT TH PHOTOGRAPH
'©
Lindsay (P) developed a film project to explore the Titanic using high illumination lighting equipment and created storyboards on how to shot it with different angles
D.u.N.Y (1999)
Lindsay then acted as the director, producer and cinematographer of the footage shot
[111]
The u͛s who actually shot the footage, licensed it to the uiscovery Channel
Lower court denied u͛s motion to dismiss and they appealed
Conception or xecution?
Held:
c An author, for copyright purposes, must show originality, conception or intellectual production and Lindsay͛s storyboards, designs and specific directions for taking the images is sufficient to demonstrate control and
conception ü he is the author
c What͛s necessary?
oc ͞High degree of control͟?
oc ͞The final product duplicates his conception and visions of what the film should look like͟?
c What if those executing the conception were given lots of discretion?
c The court says what is necessary is:
oc a high degree of control and
oc the final product duplicates his conception and visions of what the film should look like.
c ͞he did not dive to the ship and himself actually photograph the wreckage.͟ (p.117)
c Conception or execution?
c What if those executing the conception were given lots of discretion?
U(p p
A ͞joint work͟ is a work prepared by two or more authors with the ,!!,!that their contributions be merged into inseparable or interdependent parts of a unitary whole. (101)
c It has to be the intention at the time they created the work ʹ can͛t bring in a 12 year old author to help with the ͞lifetime͟
c Inseparable ʹ could be a translation
c Interdependent ʹ could be music and lyrics
c What level of contribution is necessary for joint authorship?

A PROu£CT ID A JOINT WORK ONLY IF TH COLLABROATORD CAN B CONDIuRu A£THORD
th
7 Cir. (1994) rickson (P) a play writer and founding member of Trinity Theatre (u) wrote three plays for the company.
[113] After a fight ʹ Trinity stopped royalty payments arguing that it was a co-author and co-owner of the copyright to the plays because various actors had made
suggestions that rickson incorporated during the development
Question is whether the theater company can keep putting on her work? Theater says yes because they are joint authors of her work.
Held:
c ven if several person collaborate with the intention to create a work which is unitary a ͞joint work͟ arises only if all collaborators are deemed authors in the sense that each must supply something more tangible
than mere directions or ideas.
c Professor Goldstein͛s copyrightability test which requires that each author͛s contribution be copyrightable, provides a far more workable test of when joint authorship has been achieved
oc People would never ask for help if it was not for this. joint authorship gives them a 50% claim to the work. By allowing each author͛s contribution to be copyrightable, the correct proportion is allotted to
each individual for the work they have actually created.
c Trinity cannot identify any specific copyrightable contributions made by its purported authors thus it is not a joint author of the plays
c Notes:
oc What level of contribution is necessary for joint authorship?
c This really is rejecting the idea of looking at the whole and seeing if it is copyrightable ʹ they are looking to the individual contributions and find that ideas are not copyrightable and thus their
contributions cannot be found at the same level of ͞authorship͟
c What should there be this high threshold?
ac You want everyone to put in original stuff ʹ what is the incentive/rationale? very time an author writes something then people who might contribute something small could jump on
the author ʹ the author would be scared to ask for help͙..
ac But what if the author is not such a nice guy and really taking ideas from people and not giving the contributors credit
oc Two Reasons Why this uecision is Correct:
c videntiary problem
c Incentive Problem
c
c Contribution of an idea is a very ambiguous idea ü also necessary to figure out some sort of certainty with your contributions
c What indicates intention to be joint authors?
# A PRDON CLAI©ING TO B A CO-OWNR OF A JOINT WORK ©£DT PROV THAT BOTH PARTID INTNuu TH WORK TO B A JOINT WORK
th
9 Cir. (1999) Aalmuhammed south a declaratory judgment that he was a co-owner of the copyright in a movie and thus entitled to an accounting of the profits from the movie
[114] Aalmuhammed was a consultant on Lee͛s film about ©alcolm and rewrote certain portions
Held:
c ͞a creative contribution does not suffice to establish authorship of the movie͟
c A contribution of independently copyrightable material to a work intended to be an inseparable whole does not make a joint work ü it had to be intended by both parties to be such
c Aalmuhammed had no supervisory authority over the film and signed a ͞work for hire͟ agreement ʹ thus he was a co-author
c When you have so many people adding and their contributions are important then who really has the rights?
c The court looks to who has the final control and decision making ü less about what people say but who could said ͞Yes͟ and ͞No͟
c A social consideration underlies limitations in the definitions of author and of joint work ü the ability of an author to collaborate or consult with others without the risk of losing ownership in the work favors the
progress of knowledge
c Indication of collaboration:
oc Hours put into the workͶyet is this truly indicative?
oc Written contract with third parties or the individualͶstatements made to third parties
oc Who has the ultimate control--
Comparing these two cases: are rickson and Aalmuhammed simply focusing on different elements of the definition, or are they interpreting the same element differently?
Collaborative Intent:
c What happens in other kinds of works that are fundamentally collaborative? Like comic books? Collaboration between the inker, pencil artist, story artist
c Gamen v. ©cFarland ʹ Posner expresses doubts that each element should be copyrightable and maybe in certain kinds of works where there is collaboration and where the relationship between the people is large
then maybe we should start out a higher level of presumption for co-authorship
dispute about ͞Rent͟ ʹ the story wasn͛t all that great so they hired a dramaturge to make it better and she wanted 10% and the author died and the estate refused to give it to her
c Dhe really made the play into its success ʹ and the play had initially bombed upon its opening
c The court at the time said that there is nothing as 10% because a joint author would have been 50% - so they found her only to be a dramaturge
c At the time that she worked on the play ʹ the intent wasn͛t to be a joint author
With these cases ou have to look at the intent of both parties and outside evidence like:
c Contract
c Co-author contributions were significant in both quality and quantity ʹ but why should this be the standard and how discretionary is that determination?
c Objective evidence
c Dubjective evidence ʹ third parties claiming what was said to them
nd
uavis v. Blige: 2 Cir. 2007: [D£PP 355]: a joint owner cannot transfer his right to a copyright to a defendant who is suing the other joint owner ʹ it would violate basic principles of tort and contract law and undermine the
policies embodied by the Copyright Act
p
conomic conception of authorship

1976 Act ʹ 2 Prongs:
1.c mployee work in scope of employment
2.c Independent contract work ʹ but limited categories and written agreement needed
1976 reverses the ideas under the 1909 Act:

c 1909 = no definition of work for hire
c General presumption that the commissioning party was author of the work made for hire ü unless parties intended otherwire
c
Questions that arise: what is an employee? Was the work done within in the scope of employment
Commissioned Works: it is still possible for that work to be a work for hire:
1.c The work would have to fit within one of the 9 categories ʹ see page 119
What consequences of work for hire finding?

c uifferent term ʹ length of the copyright
c uifferent renewal parties
c Not subject to termination provisions
9 Categories ʹ they look mostly like functional works
©ost commissioning parties will not be the owner for the work for hire ü so they are going to ask for a share of profits ʹ assigning rights
Dhould go back and read the notes from this section?
p
=
%

2!' £NuR CO©©ON-LAW AGNCY PRINCIPLD, ON WHO CRATD AN ARTWORK AT TH BHDT OF ANOTHR RTAIND TH COPYRIGHT, £NLDD H WAD AN
©PLOY OF THAT OTHR

CCNV (P) nonprofit commissioned Reid (u) to create a sculpture and Reid copyrighted the work
[119]
Held:
ac The classification of a particular hired party should be made with reference to agency law
c Reid was not an employee ü looked to the common law of agency to determine that in light of various factors (direction over work, skill level, source of tools, location, right to assign additional projects, benefits, tax
treatment) Reid was not an employee
c It can͛t be a work for hire since it doesn͛t fall under one of the categories of the 1976 Act
c Dct trying to determine whether or not any independent contractor works can be considered works for hire under the statute͙ the four options in the cases from dif jurisdictions ʹ one says if the person paying for the
work has the right to control even if she doesn͛t control, then she has ownership rights to it. Other juris. Day the right to control isn͛t enough͙ only if there was control.
c Question: how broadly or narrowly should works for hire be interpreted?
c 4 options in cases below:
oc Dupreme Court: ͞the classification of a particular hired party should be made with reference to law͟
oc Revelant agency factors that court looks at: hiring party͛s right to control; skill required; source of tools, location; duration of relationship, right to assign additional projects; extent of hired party͛s
discretion; method of payment; right to hire assistants; provision of employee benefits; tax treatment of hired party; etc.
oc Looks at Restatement Third of Agency
Restatement Third of Agency ü doesn͛t mention the factors
è ALTHO£GH NO ON FACTOR ID uIDPODITIV, TH LACK OF BNFITD TNuu TO AN INuIVIu£AL OR TH FAIL£R TO PAY TA D ON AN INuIVIu£AL͛D BHALF ID
nd
2 Cir. (1992) INuICATIV OF INuPNuNT CONTRACTOR DTAT£D
[129] Aymes (P) had been hired by Bonelli (u) to create computer programs for u͛s swimming pool business ʹ u never paid any of P͛s payroll taxes so it looked like he was an
independent contractor
Held:
c No one factor is dispositive to indicate whether an employee is an independent contractor or a standard employeeͶ͞no direction concerning how the factors were to be weighed͟
c ͞It does not necessarily follow that because no one factor is dispositive, all factors are equally important͟
c Here üBonelli was an independent contractor
c CCNV provided ͞no direction concerning how the factors were to be weighted͟
c All factors are not of equal weight
c Five Factors:
oc The hiring party͛s right to control the manner and means of creation
c
oc The skill required
oc Provision of employee benefits
oc Tax treatment of the hired party
oc Whether the hiring party has the right to assign additional projects to the hired party
c This court considers provision of employee benefits and tax treatment of the hired party as the most importantͶdoes this interpretation undermine the supreme court͛s approach in CCNC or not?
c uoes the approach in further Reid͛s goals of predictability and certainty more than approach itself?
c Is the Aymes Court͛s emphasis on employee benefits and tax treatment factors sensible? In all industries?
c What is it that establishes employeeness ʹ but the representations to the gov͛t that the employer makes ʹ like with tax treatment
c Deems to be reducing the focal significance of tax benefits and benefits üseems to be putting it more in the direction of formal salary employees üthis case is friendlier to the independent contractor
è ALTHO£GH NO ON FACTOR ID uIDPODITIV, TH LACK OF BNFITD TNuu TO AN INuIVIu£AL OR TH FAIL£R TO PAY TA D ON AN INuIVIu£AL͛D BHALF ID
nd
2 Cir. (1992) INuICATIV OF INuPNuNT CONTRACTOR DTAT£D
[124] Aymes (P) had been hired by Bonelli (u) to create computer programs for u͛s swimming pool business ʹ u never paid any of P͛s payroll taxes so it looked like he was an
independent contractor
Held:
c No one factor is dispositive to indicate whether an employee is an independent contractor or a standard employee
c Here üBonelli was an independent contractor
c CCNV provided ͞no direction concerning how the factors were to be weighted͟
c All factors are not of equal weight
c Five Factors:
oc The hiring party͛s right to control the manner and means of creation
oc The skill required
oc Provision of employee benefits
oc Tax treatment of the hired party
oc Whether the hiring party has the right to assign additional projects to the hired party
c What is it that establishes employeeness ʹ but the representations to the gov͛t that the employer makes ʹ like with tax treatment
c Deems to be reducing the focal significance of tax benefits and benefits üseems to be putting it more in the direction of formal salary employees üthis case is friendlier to the independent contractor
p

=
Y

ac Restatement §228:
oc 1. Is conduct of the kind the employee is employed to perform
oc 2. uoes it occur substantially within the authorized time and space limits
oc 3. Is it actuated, at least in part by a purpose to serve the master?
c Why is #3 in copyright law but not trade secret law?
c Note subjectivity of standardͶbased on plaintiff͛s testimony
ac Constitutional Dtatus
oc Is work for hire notion constitutional?
c Is ͞romantic authorship͟ required by the constitution?
%%

COPYRIGHT OWNRDHIP uOD NOT VDT A£TO©ATICALLY WITH AN ©PLOYR ©RLY BCA£D TH D£BJCT ©ATTR OF AN ©PLOY͛D WORK ID OF TH TYP
th
4 Cir. (1994) uON BY THAT ©PLOY IN TH DCOP OF HID OR HR ©PLOY©NT
[127] Peiffer (u) developed a computer program while employed by Avtec systems and was sued for copyright infringement and counterclaimed
u worked on an updated version of the computer program at home and sold the license to market it to another company
Held:
c The burden is on the employer to show that the work was created to further a corporate goal ʹ here the focus should be on the ownership of the copyright in the original work and not on the updated version
c The court wasn͛t convinced that Peiffer worked on the program to further corporate goals and instead was done as a personal hobby
c Restatement 228:
1.c Is conduct of the kind the employee is employed to perform
2.c uoes it occur substantially within the authorized time and space limits
3.c Is it actuated, at least in part, by a purpose to serve the master?
c Why in trade secret law does #3 not matter?
c
Note on mployer Ownership of Trade Decrets
Trade Decrets does not look to the intent of the creation ü thus an employee could end up owning the copyright to something that the employer owns the trade secret
Note on Teacher xception
Read page 131
p &?U p

pp
Read page 132
Note on the ©echanics of 101(2) Agreements
]
§ 105. Dubject matter of copyright: £nited Dtates Government works

Copyright protection under this title is not available for any work of the £nited Dtates Government, but the £nited Dtates Government is not precluded from receiving and )
holding copyrights transferred to it by assignment, bequest, or otherwise.
ac What constitutes government work?

oc Court opinions, federal laws and regulations, official photographs from NADA, etc. any works the fed govt comes up with CPT for stamps.
Read page 134
Note on the Freedom of Information Act (FOIA) and Copyright
@pp " p " p

pA .........
FOR©ALITID
Copyright Act of 1790:
p
ac Formalities
oc Publications
oc Notice
oc Registration
oc ueposit
1/1/78 ʹ 1976 Copyright Act
c
3/1/89 ʹ Berne Convention Implementation Act
oc Dtates that there can be no formalities
oc For foreign works ü no formalities
oc Created incentives for formalities in the £D
Pre-1976 ʹ 1976 Formalities
oc For works created and published before 1978
oc Whether a work is ͞published͟ can be tricky
c General Publication
c Limited Publication
c Key to £D Law since 1790s ü designed for certainty and efficiency, but also to keep rich public domain with burden on copyright owners to police rights
c Dome relaxation on formalities under 1976 Act ü ways to cure failures of notice under 405 ʹ diminished role of publication
c Further Impetus ü Berne Convention specifically prohibits formalities
c £D had to reform its approach in order to join Bern Convention in 1989
c Berne Convention Implementation Act (BCIA):
oc Hybrid incentives ʹ ͞carrot rather than stick͟ approach to formalities
oc Dome distinctions between £D and other Berne country works
c BCIA ʹ has really shifted the balance between public domain and formal copyright law ʹ this actually takes a lot of works out of the public domain and places burdens on the public to determine if a work is still under
copyright in order to use it
oc Often the transaction cost of trying to find if a work is useable is very high and it might even have a higher cost to actually use public works
p pp =
%©
#
å 3
è TH RLAD OF A DPCH TO TH NWD ©uIA FOR COVRAG OF A NWDWORTH VNT ID A LI©ITu P£BLICATION £NuR TH COPYRIGHT ACT OF 1909 ANu
uOD NOT uDTROY CO©©ON-LAW COPYRIGHT PROTCTION

th King (P) brought suit for copyright infringement against CBD (u) for airing a documentary that featured his famous speech without permission from the estate
11 Cir. (1999)
uistrict court granted summary judgment in favor of CBD holding that wide and unlimited reproduction and dissemination of the speech was general publication and
[144]
that put it in the public domain
Held:
c General Publication only happens:
oc Where tangible copies of the work are distributed to the public in a way that allows the public to exercise control over the work
oc Where the work is exhibited in a way that permits unrestricted copying by the public
c The mere performance of a speech is not a general publication
p
p
c Prior to 1976 Act ʹ the notice had to be on the work and had to be © or ͞Copyright͟ ü otherwise it wouldn͛t be statutorily protected
c No longer required after ©arch 1, 1989
c Dtill a good idea
oc With notice, the innocent infringement defense is no longer available
oc Promotes protection in non-Berne countries
oc Helps availability of full damages
c uoesn͛t save works published without notice between 1/1/1978 and 3/1/1989
p @p

1976 Act ʹ 2 copies
c
pp
c Optional under the 1976 Act

oc But £D and non-Berne works must be registered in order to bring suit ʹ 411
oc Other incentives: preservation of © under 405 when no notice; protection of actual owner when wrong name on notice under 406; regis. As prima facie proof of validity; statutory damages and attorney͛s
fees
c £nder 1909 Act, had to register in order to file for renewal
c Benefits to Registration
oc Timely registration has evidentiary benefits ʹ see 410
c Timely = within five years of first publication
oc Timely registration is required for certain remedies (statutory damages and atty. Fees ) 412
p
p p p p A .
c Works of Berne and WTO members

c Lost £D protection due to failure to comply with formalities
c Restored protection as of 1/1/1996 (for works of most countries)
c ©ust still be subject to protection in country of origin
c Provisions for ͞reliance parties͟ ü business built on the public works
c Why?
oc If these works were thrust out of copyright because of formalities and now that we don͛t impose that anymore then they are entitled to be restored
oc They did mandate that the country of origin had to recognize the copyright ʹ £D wasn͛t going to grant more than the original country would
u£RATION
pp
c All copyright durations run until the end of the year (305)
c The Dafe Year for Published Works ü 1922
c £npublished works have different rules, even if prior to 1922
c Works from 1935 are still eligible for protection 1935+95=2030 (renewals must have been filed to obtain full protection)
c Works from 1964 on (so long as subject to protection on 1/1/78) are still eligible for protection ü 1964 + 95 = 2059 (no renewals need to be filed)
c Works from 1/1/78 covered by ͞new͟ durations
WORKD CRATu B£T £NP£BLIDHu PRIOR TO WORKD FIRDT P£BLIDHu BFOR WORKD CRATu ON OR AFTR
JAN£ARY 1, 1978 JAN£ARY 1, 1978 JAN£ARY 1, 1978
c Life of author +70 years c Publication with proper notice = 28 years c Dingle Author: Life of the author +70 years
c Copyright will last at least until 12/31/2002 c Renewal in the final year = 28 years + 19 extension + 20 extension = c Joint Authors (not for hire): Life of last surviving author +70 years
c
oc If published prior to 12/31/2002 then copyright 67 years total at renewal c Anonymous, Pseudonymous, W©FH: 120 years from the year of
until 12/31/2047 c Total = 95 years (28+28+19+20) creation or 95 from the year of publication ʹ whichever expires first
oc 2002 was added to forestall due process c Works published prior to the 1923 are in the public domain
arguments that could arise if works could go from c Works published prior to 1964 ü the renewal certificate is required
perpetual protection to the public domain c 1964 ʹ renewal is automatic
without any transition c If in public domain: remains in public domain unless restored under
oc 2047 was added to incentivize publication TRIPD
c 1962 ʹ Congress passed ͞stop-gap͟ measures to ensure that works
in renewal terms that were scheduled to expire͙.
c Benefits to filing for renewal in last year of first term despite
automatic renewal legislation?
oc Renewal certificate = prima facie evidence of
validity/facts
oc Availability of statutory damages and attorney͛s fees
oc uerivative works prepared under prior grant can
continue to be used without new permissions (partial
legislative end-run around Dtewart v. Abend)
Problem ʹ when did or does copyright expire in a work first published in 2000?
c Was it created prior to 1/1/78?
oc No ʹ life plus 70
oc Yes ʹ need to know when the author died and add 70 ears
oc But at least 12/31/2047
c £nless it a work for hire, anonymous work or pseudonymous work
Look at paper that I scanned and she handed out ʹ also need to look at the sections
p
p
pp
Think about the policy implications ʹ how long should copyright protection last?
Netinal ʹ Copyright Law Article ʹ thinking about incentive for copyright ʹ Courts start using a definition of incentive from the Chicago school ʹ what incentivizes you is not what you are going to get paid that year ʹ it is the
entire market value of the work ʹ objective concept that doesn͛t just look at the value at this moment but includes all the works that that but for your work wouldn͛t have been created ü if you are using this concept then
isn͛t the artist͛s incentive much larger ʹ marker v. economics base ʹ key to the debate

% CONGRDD HAD TH A£THORITY TO NACT LGIDLATION THAT TNuD COYPRIGHT TR©D FOR BOTH IDTING ANu F£T£R COPYRIGHTD
Dupreme Court (2003) ldred (P) builds off of copyrighted works after they go into the public domain and sued Ashcroft (u) contending that the provisions of the CTA violated the
[159] Constitution
st
ldred ʹ represented by Lessig: 1) unconstitutional under the ͞term limits͟ of the copyright clause and 2) unconstitutional with the 1 Amendment
(GINDB£RG) Held:
c Court used the rational basis standard of review ü most differential to Congress ü ignored the bad smell of why Congress chose this action
c ͞Limited Times:͟ The provisions of the CTA does NOT violate the Constitution͛s limited times prescription because the text of the Constitution as well as history and precedent allow for such an extension and CTA
is a rational exercise of legislative authority
oc It is up to Congress and not the Courts to decide how best to pursue Copyright objectives and there was a rational basis for the conclusion that CTA promotes the Progress of Dcience
oc Arguments:
c Lessig: why is it inducement to just extend the copyright protection term ü isn͛t Congress going to pull this trick again in 20 years?
st st
c 1 Amendment: CTA which extends the terms for both existing and future copyrights, does not violate the 1 Amendment because strict scrutiny should not be applied
oc Copyright clause already incorporates its own speech-protective safeguards
oc Arguments:
c Nimmer͛s: expressive views are incorporated into the Act ü fair use/functional-nonfunctional works
(DTVND) uissent:
c Just because Congress has used its authority to enact the 1790 Copyright Act doesn͛t mean that it has the right to extend pre-existing federal protections retroactively
(BRYR) uissent:
c
c The CTA͛s significant benefits are private ʹ not public and threatens to undermine the expressive values which the Copyright Clause embodies
Notes:
st
c If a court starts looking at fair use ʹ then use this case as a way to point out the 1 Amendment allowance for the Act and reasons in support
RNWALD ANu TR©INATIOND OF TRANDFRD
Not going to test on the technical stuff

c Will remain part of our system until 2072
c Justifications for Renewal Approach in 1909 Act:

nd
oc Renegotiation right: 2 bite at apple if work turns out to be a success
oc Why special status for authors rather than other property owners?
oc Compare with work for hire provisions where Congress seems less concerned about protecting creators from the consequences of bad bargains
oc Nimmer says that people don͛t value intellectual property in advance ʹ so that is why this renewal approach was created
oc Dhould the author have to be stuck with the contract they entered into for the renewal right? Do, Congress granted the opportunity to renegotiate that renewal
c Why is renewal relevant to the 1976 Act?
oc Because of Congressional concerns over reliance interests ʹ pre-1976 works
oc Renewal scheme from 1909 Act applies to pre-76 works
oc Termination of transfers scheme applies to later works
c Two basic questions at issue in renewals and terminations of transfers:
oc Dhould authors and/or their heirs be given any rights to recapture a copyright once it has been granted to someone else
oc If such recapture is to be allowed, how should the law treat derivative works created by the grantee before recapture?

TH OWNR OF TH COPYRIGHT OF A uRIVATIV WORK INFRINGD TH COPYRIGHT OF TH £NuRLYING, PR IDTING WORK ON WHICH TH uRIVATIV WORK ID
Dupreme Court (1990) BADu IF H CONTIN£D TO £D TH uRIVATIV WORK ONC HID GRANT OF RIGHTD IN TH PR IDTING WORK HAD LAPDu
[170] Woolrich wrote a story ͞it had to be murder͟ and assigns the movie rights to a production company and died before he could file for renewal
Production company assigned its rights to Dtewart (u) who made the movie ͞rear window͟
Held:
c ven though the makers of the movie had obtained authorization form the author to make and exploit a derivative work and distribute copies
c That authorization expired at the end of the first term of copyright, because the author died before the renewal term began
c uuring a first term of copyright ʹ an author can enter into an agreement to assign those renewal rights ʹ this usually happens because they don͛t have much in a way of bargaining power in the beginning
c THID ID NOT ON TH DIu OF A£THORIAL INTNT
Do ʹ should you be looking at the author͛s intent or should these renewal provisions be cookie-cutter?
Renewal xample:
c Author writes novel in 1975, assigns ͞all of my copyright interest͟ to P in 1976, P publishes book in 1976, P secures copyright registration in 1976, and in 2004 both A and P claim renewal copyright ü A owns
Renewal term rationale v. theory of derivative rights

c Dtewart v. Abend illustrates the conflict between the renewal term rationale and the statutory support for derivative works
c What happens when most of the value of the work is due to the derivative ͞new matter͟? Why should original author get to renegotiate?
U p p

c
c 1976 Act͛s Alternative to Renewal: Recapture Right
c Two kinds of termination rights and the dividing line is the date of the transfer
TR©INATION OF TRANDFRD ©Au AFTR TR©INATIOND OF TRANDFRD ©Au BFOR

JAN£ARY 1, 1978 JAN£ARY 1, 1978
§203 § 304 (C) & (u)
c Just an alternative to the renewal system to give the author an opportunity to c You͛re talking about works that were in their previous renewal term and
negotiate the transfer Congress needs to find a way to give them the additional 19 years that it took
c Which grants are eligible? to negotiate the statute
oc Transfers made on or after 1/1/78 c Which grants are eligible?
c Who Can Terminate and When oc Transfers made before 1/1/78
oc Author, widow, children (lineal descendants per stripes), executors oc Really about recapturing the extra 39 (19+20) years added in 1976
oc ©aybe be exercised in a 5 year window beginning at the end of the 35 and 1998
years from the date of execution of the grant c Policy
c xcept if the grant is a first publication grant ʹ then 35 oc Provides author
years after publication or 40 years after grant whichever is
ARLIR
c Notice must be served not less that 2 or more than 10
years prior to the date of termination
c Policy
oc A nontransferable right to terminate 35 years after a grant was made
oc xecuted by the author at any time during the unitary term
What about derivative works?

c Prepared under authority before termination ʹ continue to utilize under terms of grant
©CHANICD OF TRANDFRD
p p
§ 204 xecution of Transfers and Other uocuments

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in )
writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
(b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if Ͷ
(1) in the case of a transfer executed in the £nited Dtates, the certificate is issued by a person authorized to administer oaths within the £nited Dtates; or
(2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the £nited Dtates, or by a person authorized to
administer oaths whose authority is proved by a certificate of such an officer.
Key Question: how to deal with new technology that is not specified in the terms of grant
%% TH TRANDFR OF COPYRIGHT OWNRDHIP ©£DT B IN WRITING IN ORuR TO B VALIu
th
9 Cir. (1990) Dpecial effects for movie and right to use
c
[183]
Held:
c Court held that ffect͛s conduct constituted a non-exclusive license ʹ an implied license to use the footage and distribute
U 1 3
è&( ©

WHR TH LANG£AG OF A LICND ID BROAu NO£GH TO INCL£u A NW £D, TH LICND WILL COVR THAT NW ©uI£©, £NLDD DPCIFICALLY CL£uu BY
TH GRANTOR
à $
nd Rite of spring and Fantasia ʹ argued over video release since the license only covered motion pictures
2 Cir. (1998)
[189]
Held: a plain reading of the contract could mean that motion picture also included a video format ünew technology the nature of which would reasonably fall within the scope of the medium for which the license was
originally granted
Which Interpretation of Grants is Better?

c A strict approach which generally favors the licensor and limits the media use to the literal terms of the agreement OR
c An approach
( è A P£BLIDHR͛D CL£DIV LICND TO PRINT, P£BLIDH, AN DLL AN A£THOR͛D WORK ͞IN BOOK FOR©͟ uOD NOT TNu TO BOOKD
DuNY (2001) Authors granted license to publish and sell works in book form to Random House and then Rosetta Books licensed with the same authors to release in ebook form
[192]
Held: in book form does not extend to ebooks
Note on Open Dource and Creative Commons [198]
2 4
LCTRONIC ANu Cu uATABADD CONTAINING INuIVIu£AL ARTICLD FRO© ©£LTIPL uITIOND OF PRIOuICALD AR NOT RPORu£Cu ANu uIDTRIB£Tu AD PART
Dupreme Court (2001) OF RVIDIOND OF INuIVIu£AL PRIOuICAL IDD£D FRO© WHICH TH ARTICLD WR TAKN, HNC P£BLIDHRD OF PRIOuICALD ©AY NOT RLICND INuIV£uIAL
[200] ARTICLD TO uATABADD £NuR TH COPYRIGHT ACT DCTION GOVRNING COLLCTIV WORKD, ABDNT A TRANDFR OF COPYRIGHT FRO© A£THORD OF TH
INuIV£uAL ARTICLD

§ 102 Dubject ©atter of Copyright: In General

(a) 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. Works of authorship include the
following categories:
(1) literary works;

(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
c Patent is a higher standard to obtain ü can use Copyright to get a ͞back-door͟ patent
c
£DF£L ARTICLD WITH PICTORIAL, GRAPHIC, OR DC£LPT£RAL ADPCTD
102: Pictorial, graphic or sculptural work generally copyrightable if they satisfy low threshold of originality
How can we identify something as a useful work?
CL£DION for useful articles: below͙
101/113: useful articles not copyrightable B£T
101: separable elements of the useful article can be copyrightable if they meet the standard (those elements that are pictorial, graphic or sculptural) yet statute doesn͛t tell how to determine which characters are separableͶ
left up to case law.
Aka: boundary between uncopyrightable works of industrial design ANu copyrightable works of applied art.
Why?Ͷcongressional concern about monopoly pricing of consumer products.
Consumer products would become extremely expensive and copyright should not be used as a tool to do this.
If the pictorial, graphic, or sculptural aspects are ͞separable͟ from the useful part of the article then they can be copyrighted
PGD WORK?
Questions:
1.c Is the work a useful article? ü the Copyright Office has changed its definition of what constitutes usefulness
a.c OLu: If a works sole function is utilitarian then it would be considered utilitarian ü can argue that a chair has more functions than just utility
b.c NW: does the article have an intrinsic utilitarian function ü so long as you can find that a work has an intrinsic function then you are going down the useful article part of the act
c.c What is the consequence of the Copyright Office change in the definition? Narrows the scope of what you can find copyrightable
2.c If Yes, then PGD Deparability
3.c If No, then traditional copyright analysis
PGD WORK?
ac If no:
oc Apply originality and fixation requirements as usual for particular subject matter
ac If yes
oc Question1: is it a useful article?
c Dhift in copyright office regs from an article with a ͞sole͟ utilitarian function to an article with ͞3utilitarian function
ac This expands the copyrightability
c ex. what about crushed rock bikini?Ͷreference to aqua tint #5Ͷsculpture looked like a bikini, work by someone on an album cover and creator of work said copyright violation! And the court said
its actually not a useful article because you couldn͛t wear it without unintended exposure
c ex. what about toys? Dhould toys be considered useful works? Or is the little itty bitty railroad just an artistic representation of a useful article? Not really
c ex. nose mask that people wear for Halloween? Is this useful?
c x. taxidermy form? Without the form, the animal would just be skin flab
oc Question 2: if yes apply separability analysis
Congress wants to ensure that useful objects are not hindered by copyrightability ʹ and don͛t want extra costs added to the manufacture of these products
BIG IDD£D:
ac Why have a useful article doctrine at all? If people could copyright ex. toaster design, wouldn͛t we get more attractive toasters?
oc Can you make distinction between industrial design and works of applied art?
ac Is it meaningful to talk about protected applied art and unprotected industrial design and can you make that distinction and still be faithful to è 5
ac How do we avoid using copyright law to get a backdoor patent?
What about taxidermy ʹ the statute says that something that portrays the item that it represents is not useful
nd
c 2 Cir. thinks that the fish forms are copyrightable ʹ because it is suppose to represent the item that it is representing
Courts are finding that toys are not utilitarian works

c
1p31 3
©6
AN ARTICL HAVING A £TILITARIAN APPLICATION ©AY B COPYRIGHTu
Dupreme Court (1954) Dtatue was used as a base for table lamps
[212] Dtein owned the copyright and ©azer began producing the statues for mass use in the table lamps
uistrict Court found infringement and awarded damages and enjoined further infringement
COA affirmed the uC
Held:
c A subsequent utilization of a work of art in an article of manufacture in no way affects the right of the copyright owner to be protected against infringement of a work of art itself
c It can still be a copyrightable work even if it has useful aspects
(Concurrence): concerned about the amount of things that could still be considered for copyrightability
This was prior to the 1976 where the ͞intrinsic utility function͟ was adopted
U p p p p p pp

£seful Article ʹ an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information (101)
Big Issues:
c Why have a useful articles doctrine at all? If people could copyright, e.g. toaster design, wouldn͛t we get more attractive toasters?
c Is it meaningful to talk about protected applied art and unprotected industrial design, and can you make that distinction and still be faithful to Bleistein?
c How do we avoid using copyright law to get a backdoor patent?
Deparability:
c Physical ü there is an argument for the idea that this is arbitrary ʹ can͛t determine between different kinds of art and what actually determines the separability ʹ glue v. screw
oc ©azer Case - lamp
c Conceptual ü
oc Primary Aesthetic Appeal
oc In inextricably Intertwined this Function ü this is very narrow
oc Temporal displacement
oc Works and they artist
What is the way/test for looking at this issue: (look at questions on page 224)
c did the creator make decisions for functional reasons or aesthetic reasons (Brandir)
c how are the consumers looking at the work (Kieselstein)
c how does the average human being see if the functionality takes a back seat to the upfront aesthetic of the work ü which one do you see first? (uissent in Barnhart)
å !

£DF£L ARTICLD AR COPYRIGHTABL ONLY TO TH TNT THAT THIR uDIGND INCORPORAT ARTIDTIC FAT£RD THAT CAN B IuNTIFIu DPARATLY FRO©
nd
2 Cir. (1980) TH F£NCTIONAL L©NTD OF TH ARTICLD
[215] Kieselstein-Cord sued Accessories for copyright infringement on a belt buckle design
P͛s had copyrights for two belt buckles and they were accepted by the ©et for its permanent collection
Pearl argued that buckles were ͞useful articles͟ with no pictorial, graphic or sculptural features that can be identified separately from and are capable of being used
independently of the utilitarian aspects
c
Held:
c The separability may occur either physically or conceptually
c The belt buckles have conceptually separable sculptural elements from their subsidiary utilitarian function
c They are copyrightable
c Part of the discussion looks towards what the consumers are doing with the work
(uissent):
c The form of the buckles is inseparable from their function

è

AN ARTICL WITH ORNA©NTAL FAT£RD INDPARABL FRO© ITD F£NCTIONAL FAT£RD ID NOT COPYRIGHTABL
Barnhart (P) began marketing certain distinctive mannequins for sale to clothing retails and conomy (u) began selling duplicates

nd Barnhart (P) applied for copyright and then sued for infringement
2 Cir. (1985)
uistrict Court held that the ornamental qualities were in separable from their function and therefore uncopyrightable
[218]
Held:
c The features claimed to be aesthetic or artists are inextricably intertwined with the utilitarian feature to display clothes
(uissent)
c Looking at it conceptually the features are copyrightable ʹ you could admire the ornamental features without contemplating the function of the mannequins so those features should be copyrightable
è

CRATOR/WORK ORINTu TDT ʹ IF TH uDIGN L©NTD OF A WORK AR PRuO©INANTLY F£NCTIONAL CONDIuRATIOND THAT TR£©P TH ARTIDTIC L©NTD
OF TH WORK , TH WORK ID NOT COPYRIGHTABL
% #

nd Brandir (P) designed a bicycle rack made of metal tubing ʹ had been designed from sculptures and adapted to serve as functional bike racks
2 Cir. (1987)
Cascade (u) copied the design
[221]
Copyright office denied registration to Brandir
uistrict Court agreed
Held:
c £nder the test of uenicola, if the design elements of a work reflect a merger of aesthetic and functional considerations, the artistic elements are not separable and thus the work is not copyrightable
(uissent)
c The true focus should be on whether the work is perceived as being artistic or merely functional, not on the development process behind the product
p=
!),4! !)
c Alternative for copyright of designs
c You͛ll realize that these are a real problem
oc they take a long time to get and are expensive (need lawyers)
oc you can lose them if there is more function than design
oc they don͛t need to have protection for so long since design changes so quickly
!*+*)) *',!
c limitations
Note on Industrial uesign Protection in the £
!p!+)*,6),4! *',! *),!-

c special protection for semiconductor chips
c special protection for vessel hulls on ships
J.H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms
c bootleg records protection doesn͛t have a limitation in time
c
CO©P£TR DOFTWAR
p =
ac £seful work or literary work?
oc arly on, not clearly protected. CONT£ characterizes as ͞writing͟
ac First generation issues: literal copying of object code (º
/
ac Decond generation issues: non-literal copyingͶcopying of program struction ( % $
© # è
/
ac Is copyright the right rubric for protection?
ac

º
THR ID NO ©RIT TO TH CONTNTION THAT CO©P£TR OPRATING DYDT© PROGRA©D, AD uIDTING£IDHu FRO© APPLICATION PROGRA©D, AR PR D NOT
COPYRIGHTABL

nd Franklin (u) infringed copyrights Apple (P) held on 14 computer programs
2 Cir. (1984)
Franklin argues that the computer operating system programs are distinguished from application programs as process, systems or method of operation
[238]
uistrict Court thinks that an operating system is part of a machine
Held:
c There is nothing to suggest that computer operating systems are not copyrightable ʹ Apple just copyrighted the instructions themselves
c Franklin argues that object code cannot be a literary work if the language only communicates to the computer and not a human
c 1. Object code copyrightable
c 2. Operating system programs are not uncopyrightable processes
c 3. No merger of idea and expression because of need for 100% compatibility.
c uiscussion:
oc uifferences between Object and Dource code
c Object Code is read by the CP£ ʹ set of instructions for the machine
c Dource Code is the translator between the object code the CP£ is reading and what the user sees on the screen
oc uifferences between operating programs and application programs
c Operating systems are not considered a process because they are basically instructions and that could be written in a manual thus there is no reason to give operating systems less protection
than instructions
oc ©erger Concept
c ven if there is only one way to write the code then it still isn͛t going to be merged because Apple wants 100% compatibility and it should have known that some parts of the code would have
been copied
c This established computer concepts in copyright
Copyrightability of a Computer Program xpressed in Object Code
Copyrightability of Computer Operating Dystem Programs
1. ͞Process͟, ͞Dystem͟ or ͞©ethod of Operation͟

2. Idea/xpression uichotomy
Upp pp p p p
What happens when you copy more than just lines of code and it includes the look and feel of the program
c

TO WARRANT A FINuING OF COPYRIGHT INFRING©NT, TO PROTCTABL, NONLITRAL L©NTD OF ON CO©P£TR PROGRA© ©£DT B D£BDTANTIALLY
DI©ILAR TO THOD DA© L©NTD IN TH DCONu PROGRA©

nd CA designed a job scheduling program with a sub-program entitled ͞Adapter͟ and Altai made its own called ͞Oscar͟
2 Cir. (1992)
Altai conceded liability for copying the first version of Oscar ʹ but it has rewritten Oscar so that the literal elements were not long substantially similar
[243]
Issue: whether and to what extent the ͞non literal͟ aspects of a computer program are protected by copyright?
Held:
c Literal elements of computer programs ʹ their source and object codes ʹ are subject to copyright protection
c Altai made sure that the literal parts of Oscar were not substantially similar to CA͛s Adapter
c Three Dtep Procedure used by the uistrict Court to determine whether the nonliteral elements of two or more computer programs are substantially similar:
oc Abstraction ʹ retrace and map in opposite order the steps the programmer took
oc Filtration ʹ take out the elements dictated by external factors and moves taken for efficiency or taken from public domain
oc Comparison ʹ was there any copying and assessment of the copied portions relative importance with respect to the overall program
c Notes
oc Filtering makes it harder for a Plaintiff to win because it takes out elements that are probably copied
oc Those elements of computer programs that are necessarily incidental to its function are unprotectable
c How to define? üàapproach: ͞purpose͟ = idea and everything else= expression
c Yet, this case rejects this interpretation
oc Policy conclusions:
c 1. xtent of protection for non literal program structure is not clear
c 2. Copyright isn͛t ͞ideally suited͟ to deal with software
oc Dubstantial similarity test for computer program structures:
º

c 1. uissecting program for abstractions
c 2. Duccessive filtration to remove elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain.
c 3. Comparison
c Is overprotecting software going to lead to inefficient non-standardization. Are we going to lose all of the social effects of standardized communication tools that will enable everyone to be collaboratively brilliant?
oc Yet programs won͛t get written at all without the financial incentive

% $
© DI©ILARITY OF CO©P£TR PROGRA©D CAN CONDTIT£T COPYRIGHT INFRING©NT
Doftel provided imaging software to uragon and when it was done it tried to erase all the software from uragon͛s system but it couldn͛t remove everything
%
nd
2 Cir. (1997)
[251]
Held:
c A compilation of non-protectable elements can enjoy copyright protection ʹ examining the individual elements, Doftel͛s copyright could have been infringed, but uragon͛s compilations could be protected
# $
è
A CO©P£TR ©N£ CO©©ANu HIRARCHY ID NOT COPYRIGHTABL D£BJCT ©ATTR
Lotus made its spreadsheet program along with its menu functions and Borland made its own spreadsheet program with the same menu commands

st None of the software was copied just the menu hierarchy and names and macros
1 Cir. and aff͛d by Dupreme Court (1995 - 1996)
[255]
Held:
c A menu command hierarchy is an uncopyrightable ͞method of operation͟ as that term is used in 102(b)
c Concurrence: why should Lotus have a captive audience ʹ people should be able to use the same macros they have already learned on a new program
oc Lotus is trying to maintain the monopoly of the market and it doesn͛t deserve to have that monopoly because it was the people that developed these macros and learned them
oc Lotus is trying to engage in an anti-trust violation
c If the court would have come out the other way, Borland͛s program would have failed because no one wants to take time to learn something new or to re-write the macros.
c Dhouldn͛t Lotus get something if it has created an incredibly elegant, easy to use spreadsheet program that hasn͛t
c ©ajority: menu command hierarchy = uncopyrightable method of operation
c Boudin concurrence: policy argument
c
c Alternative approaches:
oc Doftware patent
oc Trade secret
c test applied in # would keep the same holding
p=p
Note on Patent Protection for Doftware

c There is a move towards considering the patentability of software but the £ doesn͛t recognize it
Note on Trade Decret Protection for Doftware
Note on £ Doftware uirective
ARCHITCT£RAL WORKD ʹ NOT TDTu!!!!
Why are buildings treated so differently from designed toasters?

What is a building?
CHARACTRD
There is nothing in the statute that says characters should be copyrightable

Characters now extremely valuable
ac How to define copyrightability in characters?
oc ͞story being told͟ test?
c the great writer (uaschellHammit) writes the story of the ©altese Falcon
c does the character constitute the story being told rather than only a chessman in the story.
c Dells story to Warner Brothers and WB doesn͛t hire him to write the rest of the stories͙ so needs money and keeps writing stories involving the characterͶWB sues him saying he sold
them the rights to the character
ac ͞the characters of the authors imagination always fall into limited patterns͙ conceivable that character constitutes the story being told, but if only a chessman, not
copyrightable.͟
oc ͞fully specified͟ test?
c
c What is the level of specificity of delineation test, what kind of medium does that lend itself to?
ac How long does copyright in character last?
p p =
©
!" !©

A ©OVI CHARACTR CAN B COPYRIGHTABL WHR H HAD DPCIFIC CHARACTR TRAITD THAT AR uVLOPu THRO£GH A DRID OF FIL©D
Honda made a commercial that had a character in it similar to James Bond
(©

C.u. CA (1995)
[280]
Held:
c DTORY BING TOLu TDT: ©ovie Character can be copyrighted in certain circumstances:
oc Where the character represents the story actually being told in the film and not merely a ͞chessman͟ in that story
oc Where the character is graphically depicted
oc Where the character is especially distinctive
c uiscusses the Dam Dpade case from the ©altese Falcon ü found that Dam Dpade was not copyrightable because he did not constitute ͞the story being told͟
c Notes:
oc Literary characters v. visually depicted characters?
c Photographic v. graphical visual depictions
oc What happens when characters change? üdoes the character transcend the actor? ü can the character grow and change into different directions
c Why does this matter? Isn͛t just a choice between two tests that doesn͛t involve this question?
c Do you could be ͞fully specified͟ if you used the actor͛s characteristics or the character͛s characteristics
oc uuration of protection for characters?
oc Is this a trademark issue area?

è
TH OWNR OF A COPYRIGHT IN WORKD ©BOuYING A CHARACTR CAN OBTAIN A COPYRIGHT IN TH CHARACTR ITDLF IF TH CHARACTR ID DPCIFICALLY
uLINATu IN TH WORK ANu ID D£FFICINTLY £NIQ£

Titan promotes the WWF and Turner owns the WCW
u. Conn. (1997)
Two former WCW went to wrestle for WWF and WWF created new characters for them.
[284]
The wrestlers went back to the WCW but continued using the characters except for the name
Held:
c DPCIFICITY OF uLINATION - F£LLY DPCIFIu TDT: The P bears the burden of demonstrating that the character is specifically delineated in the P͛s work and that the delineation was copied and that the character
must have been uniquely developed
c Razor Ramon and uiesel.
c Literary characters vs. visually depicted characters?
oc Photographic vs. graphical visual depictions
c Is it odd that cartoon characters are more easily copyrightable than literary characters?
c What happens when such a character becomes a sterotype (or is drawn from one and further specifies it?)
c What happens when characters change?
c What should the duration of character protection be?
Note on fan Fiction on the Internet
U p=
Note on Trademark and £nfair Competition Law
Note on Rights of Publicity

c
uATABADD ʹ NOT TDTu!!!!
p " " pp

c What kind of selection or arrangement exists in databases?

oc What about electronic? The user has a lot of control over the arrangement
c 66)-+:*,),!4:!!669p! *7,! 56,)-,!4 [269] ü Yellow pages information facts
oc The names, addresses, telephone numbers and business types listed in a yellow pages directory are not original elements of a work and are not copyrightable
oc Delective acts were methods of discovery
c ntirely typical for business directory
c Issue isn͛t whether there are other less useful ways of arranging
c Heading structure dictated by 1) functional considerations; 2) common industry practice
oc uissent: choice of classified headings= ex. of original selection
oc Court says the process of selection is not copyrightableͶyet then what does the statute mean that you can have a copyright in the selection of some underlying things
c p! *:,'):'6!!**08*) [296] ü Redbook ʹ prediction of the value of used cars
oc Copyright protection does not extend to ideas but does extend to compilations and the expression of those ideas
oc £sed car valuations are not facts
oc Are copyrightable as compilations under º
oc Have not mergedͶif accept the merger definition, no compliations will get copyrighted because of the way in which these useful sort of compilations are designed (as useful as possible)
c Policy argument.
c Yet on the other hand, not going to say every one of useful compilations of facts can be copyrighted, so will distinguish between dif kinds of ideas. In some will say theres a merger and some
they won͛t.--- yet in the past ideas were not copyrightedͶthe court responds that CCC is right but not because of these different types of ideas, but instead because there really are dif ways
to organize things and if chosen particularly interesting and atypical way or organizing, you ought to get some protection for that.
c Practical ideas vs. ideas fused with opinion
oc But copyrightability should depend on what kind of idea animates the compilation
c à

7
è 5
oc Look towards complexityͶcourt assuming tha the kinds of things are an issue in are more complex than the yellow pages
oc What makes these two decisions consistent?
c uatabase protection
oc ©aybe create sui generis protection like the £ uatabase uirective which provides separate protection for extremely hard to put together databases.
c All that you must show is that there was a substantial investment
Up=
c What counts as a fact? uifferent kinds of facts?

c CuN Inc. v. Kapes
c ©atthew Bender & Co. v. West Publishing
p=
Note on the £ uatabase uirective
Note on uatabase Protection in the £D

c

p
p
§ 106 xclusive Rights in Copyrighted Works

Dubject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: )
(1)c to reproduce the copyrighted work in copies or phonorecords; ©ost significant is the reproduction right
(2)c to prepare derivative works based upon the copyrighted work;
(3)c 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; Dhould you read 106(2) as having one
(4)c in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted standard for copyrightability and a completely
work publicly; different standard for infringement? Look at
(5)c in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a page 386
motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6)c in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
TH L©NTD OF INFRING©NT
pp p p
DI©ILARITY ü 2 uifferent Contexts

c COPYING: whether the u copied from the P (copying in fact) and
c I©PROPR APPROPRIATION: whether the u copied enough of P͛s protected expression to constitute infringement (most relevant for claims of violations of the right to reproduce the work and derivative works)
c
To Dhow £nauthorized xercise of a 106 Right:
1.c Copying in Fact ʹ direct or circumstantial evidence (access + substantial (probative) similarity)
2.c Improper Appropriation ʹ sometimes called improper copying or substantial similarity
£CLA & Columbia Law Dchool Copyright Infringement Project:
Question 1: did the u copy P͛s work or create it independently?

If there
U
p p
Infringement of the Reproduction Right

c It is an CL£DIV right
c Includes all copies ü including non-commercial copies are subject to the right
c Copyright infringement т limited to exact copying
c Civil copyright infringement = strict liability model
c Frequently requires reliance on circumstantial evidence
c Tension with independent creation rule
uefendant͛s Arguments :Infringringment Prong 2

1.c u copied uncopyrightable elements such as ideas rather than expression
2.c The audience would not find the works substantially similar

è©
© TH ACCDD L©NT OF A CLAI© FOR COPYRIGHT INFRING©NT ©AY B DHOWN BY u©ONDTRATING THAT TH ALLGu INFRINGR HAu RADONABL ACCDD TO
TH COPYRIGHTu WORK ü ͞an opportunity to view or to copy P͛s work͟
è
th Isley Brothers wrote and recorded ͞Love Is a Wonderful Thing͟ and made it to the charts but not very high in 1966
9 Cir. (2000)
1990 Bolton wrote ͞Love Is a Wonderful Thing͟ that reached 49 on the charts
[315]
3 Boys sued for copyright infringement
Lower court awarded 3 Boys $5.4 mil for copyright infringement
Held: P did not give persuasive arguments to the Court but it did find that there was sufficient evidence to support the jury͛s finding of infringement and the court will uphold that
c Reasonable Access can be shown for circumstantial evidence where:
oc a particular chain between the protected work and the allegedly infringing work can be shown and
oc where the protected work has been widely distributed
c What does that mean?
oc ͞reasonable͟ opportunity
oc ͞more than a bare possibility͟
oc Access not to be inferred from ͞mere speculation or conjecture͟
c What kind of circumstantial evidence is enough?
oc A particular chain of events is established between the P͛s work and the u͛s access to that work (such as through dealings with a publisher or record company)
oc Wide dissemination of P͛s work (through sheet music sales, records and radio performances)
If similarities are striking enough, will proof of access be needed? Arnstein& 2 Boys suggest ͞NO͟
c In Arnstein you have a situation where Porters work is widely disseminated ü so it could be that the reason you don͛t have to show proof of access is the wide spread dissemination of P͛s work
c The Isley Brothers song wasn͛t a huge selling album
c Do it looks like when you read the cases that they are saying look at the striking similarities ʹ this is the main question even though there is a question of access
What͛s the burden? Delle v. Gibb = to show that independent creation ͞was not possible͟
c This seems to be playing with who has the burden to show what
Note: 129 songs called ͞Love is a Wonderful Thing:͟ have been registered with the Copyright Office
Copying ʹ Proof Issues
c
c Can you use experts to opine on ͞copying in fact͟ ʹ access and substantial (probative) similarity? YD
oc The expert can look at the music and show that it was unique or had parts from the public domain
oc They cannot come in under the second prong ʹ under substantial similarity
oc £nder Dubstantial Dimilarity ʹ you can only have sociologists that discuss what the average listener will hear
" INFRNC OF ACCDD GIVING RID TO COPYRIGHT INFRING©NT ©AY NOT B BADu ON ©R CONJCT£R, DPC£LATION, OR A BAR PODDIBLITY OF ACCDD
th
7 Cir. (1984) DTRIKING DI©ILARITY ALON т NO£GH
[318] Dellecomposed a song in 1975 and obtained copyright ʹ played it in his band and sent it on a tape to 11 recording companies and only 8 returned it
1978 Delle heard the Bee Gee͛s song ͞How ueep Is Your Love͛ and thought he recognized the song as his own with different lyrics
There was no direct evidence of access
Held: The evidence of striking similarity was not sufficiently compelling to make the case when the proof of access must otherwise depend largely upon speculation and conjecture
c Agreed with the lower court that there was no more than a bare possibility that Gibbs could have had access to Delle͛s song and this was an insufficient basis from which the jury could have reasonably inferred the
existence of access
Notes:
c ͞at least some
which would establish a reasonable possibility that the complaining work was to the u͟
c Term is often used in ͞conclusory or circular fashion͟
c How to show ͞striking similarity͟? [320] do these all weigh equally? Or should one like the ͞unique or unusual motif͟ be a less of a showing that common errors?
oc Wholesaling copying OR
oc Dame ͞unique or unusual motif͟ unlikely to come from a prior common source OR
oc ͞suspicious snippets͟ ͞common errors͟
"©
ACCDD ANu COPYING ©AY B INFRRu WHN TWO WORKD AR DO DI©ILAR TO ACH OTHR ANu NOT TO ANYTHING IN TH P£BLIC uO©AIN THAT IT ID LIKLY
Nu DT
th
7 Cir. (1997) THAT TH CRATOR OF TH 2 WORK COPIu TH 1 ʹ B£T TH INFRNC CAN B RB£TTu BY uIDPROVING ACCDD OR OTHRWID DHOWING INuPNuNT
[320] CRATION
Beanie Babies created by Ty
G©A brought its own line 3 years later ʹ the Pig looked almost identical
Held: Not enough evidence of independent creation ü absence of any evidence of how the designer͛s drawing was translated into the Ty design and Ty͛s design did not resemble anything in the public domain
c The more a work is both like an already copyrighted work and unlike anything that is in the public domain ʹ the less likely it is an independent creation
Notes:
c ͞[i]f . . . two works are so similar as to make it highly probable that the later one is a copy of the earlier one, the issue of access need not be addressed separately, since if the later work was a copy its creator must
have had access to the original . . . . [W]e do not read our decision in Delle to hold . . that no matter how closely the works resemble each other, the P must produce some (other) evidence of access . . . [A] similarity
that is so close as to be highly unlikely to have been an accident of independent creation is evidence of access͟
c But u may rebut with ͞proof that [he] could not have seen the earlier [work] or a copy of the earlier one͟
c The fact that the G©A version has toes like the Ty one ü this is different than what a pig would look like in the public domain
Dheldon v. ©G© [323]: Learned Hand͛s statement
Compare Delle and Ty Approaches:

c Are Delle and Ty consistent? ü Ty distinguishes Delle
c Dhould Ty have to show any more than it did?
c Which rule is better ʹ Delle or Ty ʹ or is one better for certain kinds of works and the other for others?
c Bottom line in most courts: if striking similarity, important for u to show possible third source
Dubconscious Copying
c The Chiffons͛ ͞He͛s Do Fine͟ v. George Harrison͛s ͞©y Dweet Lord͟ ü do they have the same ͞total concept and feel?͟
c Is the subconscious copying rule fair?
c What is the rationale for liability for subconscious infringement ʹ when the infringer not only doesn͛t intend to copy but is unaware that he͛s copying
c Dhould there be statute of limitations for such claims? What about when someone does a remake of the song?
Note on uocumenting Independent Creation

c
TH RPROu£CTION RIGHT
1 p

pp3

p
2 £

COPYRIGHT PROTCTION OF LITRARY PROPRTY ID NOT LI©ITu TO PROTCTING ©RLY TH LITRAL T T OF TH WORK
nd
2 Cir. (1931) Two different plays
[326]
Held: copyright protection cannot be just the literal text ʹ we are going to protect more than that but we still are not going to protect ideas
c The right cannot be limited literally to the text, or else a plagiarist would escape by immaterial variations B£T u does not infringe if s/he takes uncopyrightable elements
c Abstractions Test: ͞£pon any work͙a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out ͙.There is a point in this series of abstractions where they are
no longer protected, since otherwise the playwright could prevent the use of his ideas͙Nobody has been able to fix that boundary, and nobody ever can
c £ncopyrightable lements: scenes a faire ʹ stock character, situations, plot lines ü not copyrightable
oc A comedy based upon conflicts between Irish and Jews into which the marriage of their children enters is no more susceptible of copyright than the outline of Romeo and Juliet
oc No monopoly in ͞ethnic comedy͟
oc Thought the P discovered the vein, she should not keep it to herself ʹ so defined the theme was too generalized an abstraction from what she wrote
c Process for Dubstantial Dimilarity
oc No infringement if substantial similarity due to uncopyrightable elements, but
oc No dissection: This [the u͛s emotion-comparison chart] is not the proper approach to a solution; it must be more ingenuous, more like that of a spectator, who would rely
c Assessment of Abstractions Test: learned hand applied the test and came out the other way in Dheldon v. ©G© (noted on page 323)
oc Dheldon: public domain story; novel; play and movie. The author of the play says that it was infringed by the movie. The makers of the movie say that they properly took the story from the novel and not
from the play
Notes:
c In music there was the popular music chart and the race chart ü Congress passed a provision that there is a compulsory license for people to do cover versions of songs that have already been published ʹ therefore
because of this license there was an opportunity that was lost for black musicians since the white bands could just do a cover of their song rather than allow them to play their own music in the mainstream market
c Think about the consequences in doctrine ü so what is the consequence of Learned Hand͛s outcome for this case?

TH Q£DTION OF WHTHR TWO ©£DICAL CO©PODITIOND AR D£BDTANTIALLY DI©ILAR ID GNRALLY A Q£DTION FOR A J£RY ANu DHO£Lu NOT B uTR©INIu
nd
2 Cir. (1946) ON D£©©ARY J£uG©NT
[330] Arnstein argued that Porter infringed several musical compositions which had been widely sold and publically performed
Held: decision is for the jury ʹ summary judgment was reversed
c Focus on the economic value to P͛s work of the piece taken by u
oc Is the u substituting his work for the P͛s and therefore appropriating P͛s customers?
c Looks like focus is on current, existing market: reaction of ͞ordinary lay hearer͟
c Dtandard for improper appropriation: ͞whether u took from P͛s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that u wrongfully
appropriate something which belongs to the P͟
Notes:
c Arnstein was a serial litigant and thought that dozens of people where stealing his music and he wasn͛t as famous as these other artists like Porter
c This is a market-oriented approach ü is the u taking away the P͛s market?
th
c xample of Beethoven͛s 5 ʹ is the remix actually taking away the market from the original mix
c ©usic is a special art form that the tastes can vary widely - and different styles are going to be appealing to many different markets
c To what is expert testimony relevant in the Arnstein test of copying + substantial similarity?
oc What kind of expert for Prong 1? ʹ you need experts to give a technical opinion since you can always find people who subjectively think that something sounds similar
oc What kind of expert for Prong 2?
c Dummary judgment in substantial similarity cases?
Dubstantial Dimilarity ©arket Analysis:

c Assume copying ʹ substantial similarity?
c
th
oc Beethoven 5
th
oc Walter ©urphy Band 5
c Is the u͛s use damaging the P͛s market?
c Dhould potential markets be included in the market harm inquiry?
c uoes consumer confusion make sense for music?
c Isn͛t this consumer confusion really borrowed from trademark?
&©
å
%% '
WORKD WHICH CAPT£R TH ͞TOTAL CONCPT ANu FL͟ OF COPYRIGHTu ©ATRIAL ©AY CONDTIT£T INFRING©NT OF D£CH ©ATRIAL
Kroffts had a tv show with a character and argued that ©cuonalds infringed upon one of the characters for their tv commercial
©$
9th Cir. (1977)
[333]
Held:
c xtrinsic test for similarity in ideas:
oc uepends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed ʹ type of artwork ʹ materials used subject matter and the setting for the subject
oc Analytic dissection and expert testimony are appropriate
oc Question may be decided as a matter of law
c Intrinsic test for similarity in expression:
oc uepending on the response of the ordinary reasonable person
oc Works should be considered and test not hypercritically or with meticulous scrutiny but by the observations and impressions of the average reasonable reader and spectator
oc Analytic dissection and expert testimony are not appropriate
oc Intrinsic analysis required here because works directed to audience of children
oc They have captured the total concept and feel of the Pufnstuf show
Notes:
c They quote Roth Greeting Cards ʹ which is a copyrightability case ʹ not infringement case
Compare ArnsteinanKrofft:
c Krofft court said no court had improved on Hand test
oc But Kroff version = articulated differently
c Is the Krofft extrinsic test the same thing as the Arnstein focus on copying in fact?
c Is the Kfroff intrinsic test the same as the Arnstein improper appropriation test?

A VID£AL I©AG THAT WO£Lu B RCOGNIZu BY TH AVRAG PRDON AD HAVING BN APPROPRIATu FRO© A COPYRIGHT WORK INFRINGD ON THAT
D.u.N.Y (1987) COPYRIGHT
[336]
TOTAL CONCPT ANu FL ü complete opposite to Computer Associates
Held:
c The term ͞recognize͟ hasn͛t been a part of the definition before ʹ and this is very different from saying that it displaces the market
c Is style an element of expression or an idea?
Notes:
c They quote Roth Greeting Cards ʹ which is a copyrightability case ʹ not infringement case
c
c The question is: are you protecting style?
c Pro Dteinberg: there is something expressive in style
c This seems to go beyond the lay observer test of Arnstein
Framework:
c When looking at Nichols and what Hand is setting out is that you will never get a brightline answer to the infringement question ü you have to figure out how to operationalize this goal to find the right place in the
spectrum between literal copying and taking an abstract idea where the right about of inducement is going to be balanced with the right amount of public domain from below
c The more you protect an underlying work = the more you protect one author = the more you create disincentives for the public domain creation
c Which test is more in line with copyright goals ü
oc holistic or dissection
oc how much of style do you protect
c The authors of the book seem to think that an over protection of style think it leads to less art movements v. others who think that masters of a movement should get protection for those styles
c What happens if the artist who does the covers for the New Yorker is hired to do a movie poster ü should the transferee of the work stop the artist from doing work in their own distinctive style?
è è # WHR A COPYRIGHT HOLuR͛D WORK ID NOT WHOLLY ORIGINAL B£T INCORPORATD L©NTD FRO© TH P£BLIC uO©AIN, INFRING©NT ©AY B DHOWN ONLY
nd
2 Cir. (2001) BY A D£BDTANTIAL DI©ILARITY TO TH L©NTD PROPRLY COPYRIGHTABL
[341] Alphabet Quilts
Held: Court finds Banian͛s quilts to be sufficiently similar to Boisson͛s design as to demonstrate illegal copying
c Dubstantial similarity = if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same
oc This is the same as the Arnstein standard ʹ yes? xcept for the ͞aesthetic appeal͟ part
c ©ore discerning ordinary observer standard adopted when work incorporates public domain elements
oc Dame as dissection into separate components?
oc What͛s the purpose of this test?
c What do we look at ͞discerningly͟?
oc Total concept and feel instructed by common senseü have to look at the arrangement of the whole
oc Look at: arrangement, letter shapes, colors, quilting patterns, choice and placement of icons
c Notes:
oc Dhould you use the ͞total concept and feel͟ or the ͞merger analysis͟
nd
The 2 Circuit
c Is Boisson a good approach or does it unduly double count public domain material?
nd
c Question 7 on 345: consider all the 2 Cir. cases ʹ Nichols, Arnstein, Dteinberg, Boisson
oc Consistent?
oc uistinguishable by subject matter?
oc Would Boisson͛s test have changed the result in Dteinberg?

LABORAT uIDDCTION ANu FILTRING O£T ü Includes in the copyrightable elements external considerations
nd
2 Cir. (1992) Computer Program
[345]
Held: Court
c ABDTRACTION ʹFILTRATION ʹ CO©PARIDON TDT ʹ for separating idea from expression and determining infringement
c FILTRATION: sifting out all the elements which are ideas, or dictated by efficiency or external factors or taken from public domain
c CO©PARIDON: did defendant copy ͞any aspect of [golden nugget]? What was ͞the copied portion͛s relative importance with respect to the P͛s overall program͟?
oc Correct comparison by court?
c What comparison would CA argue for instead ü they would want the ͞total concept and feel͟
c Notes:
oc Compare abstraction ʹ filtration ʹ comparison test with other precedent (Nichols, Arnstein, Kroff)
oc Advantages/disadvantages of different tests for different types of works re: substantial similarity
oc Compare with Apple v. ©icrosoft approach (no filtration b/c of concern to protect look and feel but rigorous dissection analysis applied
c xpert vidence:
oc Because computer programs ͞likely to be somewhat impenetrable by lay observers͟
c
oc Court ͞leave[s] it to discretion of the district court to decide to what extent, if any, expert opinion regarding the highly technical nature of computer programs is warranted in a given case

( RANuO© DI©ILARITID DCATTRu THRO£GHO£T A WORK uO NOT CONDTIT£T COPYRIGHT INFRING©NT
th
9 Cir. (2002) ©oon Characters for Children͛s Book
[349]
Held:
c Court employs the two part analysis for this circuit:
c xtrinsic Test: determine whether two works are substantially similar ü objective comparison of specific expressive elements which now includes all ͞objective manifestations of expression͟
c Intrinsic Test: subjective comparison that focuses on ͞whether the ordinary, reasonable audience would find the works substantially similar in the ͞total concept and feel͟
c xtrinsic test has expanded to include all ͞objective manifestations of expression͟
oc Why?
oc How would Boisson Court resolve Cavalier and Dwirsky appeals?
c What͛s the summary judgment standard in Cavalier?

D£©©ARY J£uG©NT ©AY NOT B GRANTu ON TH BADID OF DCND A FAIR WITHO£T INuPNuNT VIuNC £NLDD TH ALLGATION OF DCND A FAIR ID
th £NCONTDTu
9 Cir. (2004)
[354] Copyright infringement of a song ü similarity of chorus
Held: Court
c u argues: seven-note
c Q 2 page 358 ʹ How does the Dwirsky expert͛s methodology differ from the analysis in Cavalier?
c What was the benefit of having an expert testify about substantial similarity?
c ©usical scenes a faire: appropriateness of experts and ability to identify
Variations on Dubstantial Dimilarity/Improper Appropriation

c Nichols: abstractions test
c Krofft: extrinsic +
Various Tests
c ©aybe explanation for variety is
Wrap up on Infringement of the Reproduction Right

c Variety of approaches to substantial similarity
oc Dpectrum: Dteinberg (total concept and feel) to Computer Associates (elaborate dissection and filtering)
c Which approach is better?
oc From the point of view of
oc
*8 !,! *,!47! -*8*+',!*,4-
c Variety of approaches to substantial similarity
oc Dpectrum: Dteinberg (total concept and feel ) to Computer Associates (elaborate dissection and filtering out)
c Which approach is better?
oc From the point of view of the copyright goals?
oc From the point of view of the different kinds of works?
oc As a practical matter, how you write the jury instruction?
c At the end of the day ʹ all of these rules/doctrines give you the sense that there is some sort of rigor here and underneath lies the fundamental question: how broad should copyright protection be? How broad
should the public domain be?
U

The xact Copy [359]

c Piracy Cases
c
c Cases involving arguably privileged conduct (statutory defenses)
c Cases of automatic copying generated by downloading
oc Dhould Congress enact a provision that would shield browsing by Internet users? The ordinary conduct of users of licensed software
c Judicial ͞schizophrenia͟ re: ephemeral copies
Total Concept and Feel is not often applied in literary works cases ü you don͛t have the holistic image and there are a lot of variations in what people see in a literary work (works easier with visual works)
Lay Observer Test üBoisson is a more rigorous standard
§ 117 Limitations on exclusive rights: Computer programs

Permits certain reproductions of computer programs but its scope is limited ʹ shelters only the owner of a copy of a computer program
©
!º#2 % TH INNOCNT INFRINGR AFFIR©ATIV uFND ©AY B RAIDu ONLY WHR TH ALLGu INFRINGR RLIu ON AN A£THORIZu COPY OF A WORK THAT
O©ITTu COPYRIGHT NOTIC
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8 $

Cip art software
Nu IL (1997)
[360]
Held: u obtained a copy from an unknown source and should have known that it was unauthorized ü not entitled to innocent infringer defense
Note on phemeral Copies: exemption in the broadcast industry for simultaneous recording/copying
TH uIDTRIB£TION RIGHT
§ 106 (3)
Dubject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: )
to distribute copies or
(3) phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
The uistribution Right

- it does not require reproduction ʹ separate right
c When will the copyright owner prefer to sue the distributor rather than the copier?
Is just offering something for downloading ʹ making something available ʹ to be considered a distribution
©arobie ʹ FL ʹ demonstrates the breadth and inflexibility of strict liability for copyright infringement based on the mechanical act of reproduction:
͞when a public library adds a work to its collection͙͙it has completed all the steps necessary for distribution to the public ͙͙.unjustly profit by its own omission͟
Dee arguments in the Hall uissent
c Copyright owner has the exclusive right to distribute copies or phonorecord of the copyrighted work to the public by sale or other transfer of ownership, or by rental lease or lending
c This right gives the copyright owner the right to control the first public distribution of the work
c It does not require reproduction ʹ separate right
oc When will the copyright owner prefer to sue the distributor rather than the copier?
Importance of the distribution is every more important to day given the amount do digital access
p1ppp 3=
©
!º#2 % The unauthorized placing of copyrighted material on a website constitutes a violation of the copyright owner͛s exclusive right to distribute its material
Cip art software
º
8 $

c
Nu IL (1997)
[365]
Held: uploaded files were made available for download by internet users and the server did transmit some of the files when requested
(
%3
% A library ͞distributes͟ a work, for purposes of the Copyright Act, when it places an unauthorized copy in its collection, includes the copy in its cataloguing system and
makes the copy available to the public
#
!$
th Library͛s copy of genealogical research materials in microfiche form
4 Cir. (1997)
[365]
Held: the issue was that the copy the church was keeping for loan purposes was not the original but a copy it had made prior to the original being destroyed
U p p
First Dale uoctrine (109): exception to 106(3) ʹ allows owner of physical copy to resell or loan work ʹ despite copyright owner͛s distribution right
c But 109 has exceptions too! Congressional limitations on record and software rentals and the uropean public lending right
c uoes NOT prohibit rental, lease, or lending of phonorecords or computer programs by nonprofit libraries or computer programs embodied in some other machine or product
c Not applied to digital distribution of works
è!©

ABDNT PRIVITY OF CONTRACT, TH DOL RIGHT TO VNu GRANTu TO COPYRIGHT HOLuRD uOD NOT CRAT A RIGHT TO I©POD LI©ITATIOND ON TH RIGHT OF
Dupreme Court (1908) DAL OF F£T£R P£RCHADRD
[369] Genesis of first sale doctrine ʹ copyright holder tried to stop book reseller from selling for less than $1
Held: the first sale doctrine does not allow the copyright holder to impose a limitation on the sale of a work in perpetuity
st
uo you want an expansive 1 Dale uoctrine?
pB p p p p
· å $

The right of a copyright owner to prohibit the unauthorized importation of copies of its work is
subject to the first sale doctrine of section 109(a)
#6

Dhampoo labels imported back in to the £D

[378] uo we even still need derivative works rights? As long as we have a
Held: 602(a) importation is infringement of 106 right ü 106 right to distribute is subject to exception 109 ü 109 first sale doctrine = broad interpretation of reproduction right and performance right ü then
602(a) does NOT apply to domestic and foreign who import lawfully obtained copies this will cover the ͞derivative͟ works right
The reason for having a ͞derivative͟ works is that the reproduction and
TH RIGHT TO PRPAR uRIVATIV WORKD performance rights were much narrower
A ͞derivative work͟ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions,
annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ͞derivative work͟. (101)
There is a wide range of the amount of the underlying work is incorporated ʹ complete incorporation would be a translation
Focal Issues:
c Infringement
c Originality
c Recasting, adaptation, transformation ü what does this mean? Framing or linking ʹ should that be considered?
c
c Fixation ʹ do they need to be fixed to be infringed
c Application to situations created by new technologies
p p 1 pp
c History:
oc arly copyright law: no derivative works right
oc 1870 ʹ right to reserve right to dramatize or translate author͛s works
oc 1909 grant of right to dramatize, translate, ͞make any other version thereof, if it be a literary work: to arrange or adapt it if it be a musical work͟
oc 1976 ʹ right to make derivative works extended to all categories of copyrightable subject matter
HR Report explaining derivative work [386]
c Goldstein uefinition: 7*0C), ,',!

oc uistinction between the reproduction right and the right to prepare derivative works = the ͞point at which the contribution of independent expression to an existing work effectively creates !//*0 *
+, *!7*0͟
oc The works at the outer reaches of this realm will often be connected with a license from the author
oc THID RIGHT AFFCTD TH LVL OF INVDT©NT IN TH ORIGINAL WORK
oc THID RIGHT ALDO AFFCTD TH uIRCTION OF INVDT©NT
c Questions
oc If a works is based on an underlying work and it is a derivative work is that the end of the discussion?
oc uoes there have to be originality in the derivative work?
oc What about fixation? Can there be infringement by a work that is not fixed?
oc What is the relationship between the derivative works right and reproduction right?
c If the 1976 statute is read literally then it can be read very broadly ʹ so how do we apply the language in real assets

A uRIVATIV WORK IN A uIFFRNT ©uI£© CAN B D£BDTANTIALLY DI©ILAR TO TH COPYRIGHTu WORK WHN TH uRIVATIV WORK ID BADu ON ORIGINAL,
PROTCTABL PRDDION IN TH COPYRIGHTu WORK
"

nd Deinfeld Aptitude Test
2 Cir. (1998)
[387]
Held: Deinfeld Aptitude Test = substantially similar to Deinfeld show and therefore infringing derivative work
c uifficulties with applying ͞standard͟ substantial similarity tests when works are in different media and different genres
c YT ʹ DAT = substantially similar to Deinfeld show and therefore infringing derivative work
c ueriv. work monopoly okay even if author of underlying work ͞made the artistic decision not to saturate those markets͟
oc Is decision ͞artistic͟? ʹ doesn͛t have to include aesthetic ʹ maybe it does include marketing
oc What if the decision was economic and business based?
c Question 1: how meaningful is substantial similarity here? ʹ note 1 on page 394
c The Court Rejected £sing These Other Tests:
oc Ordinary Observer Test ʹ this doesn͛t work because a lay observer might always find an aesthetic feel
oc Total Concept and Feel Test ʹ the Court didn͛t like it because due to the different mediums it will automatically have a different concept and feel ü this could lead to an abuse of this test because it could be
used to show that it is automatically different based on the medium ü the defendant will always win ʹ so it is too narrow of a standard to protect
oc Fragmented Literal Dimilarity Test ʹ can͛t base the test on literal quotations that are the same ʹ but it is a small enough amount that again it might be hard to find the defendant infringing
Notes: should this just be tossed over to trademark? this is very much like moral rights ʹ and protecting the author and allowing them to have complete control over their brand
Trademark and derivative works takes care of the same thing that moral rights cover in urope
c Why can͛t the u win by saying they are recording facts? ʹ this isn͛t a public domain ʹ this is a creative work ü so is it a fact
$ %
$
9
AN A£THOR͛D RIGHT TO PROTCTION OF A uRIVATIV WORK ONLY TNuD TO TH L©NTD WHICH TH A£THOR HAD Auuu TO TH WORK
Trolls Case
è
&
rd
3 Cir. (2002)
[391]
c
Held: the lower court never compared the two trolls side-by-side
c Two Inquiries Necessary:
oc Originality and
oc Dubstantial Dimilarity
c By definition͙.derivative works are substantially similar to the original work . . . the test for minimal creativity is therefore necessarily separate and apart from the test for substantial similarity ͙ the distinction
between the tests for infringement and for originality may be nuanced ʹ but it does exist and must be carefully considered by the court͟
c If you want to make a claim that something is infringing ʹ you have to show that the derivative work is original
c This is a restored works case under 104(a)
U p
©ust a uerivative Work be Original and Fixed to Infringe?

c ©odes of transformation
c Recasting and Originality:
oc Which is the better rule?
c Contrasting cases re: artwork mounted on tiles:
c ©irage ditions v. Albuquerque A.R.T.
ac ͞another version͟ of P͛s art work = derivative work title prep process = recasting/transforming individual images
c Lee v. A.R.T.
ac Card-on-title isn͛t copyrightable; framing process doesn͛t create derivative work ʹ p͛s work isn͛t recast, adapted or transformed ʹ ͞it was not changed in the process͟ a definition of
derivative work that makes criminal out of art collectors and tourists is jarring despite Lee͛s gracious offer not to commence civil litigation
1 p 3 pp p

©
8
8 A PRDON CANNOT CO©©RCIALLY TRANDFR COPYRIGHTu ARTWORKD ONTO OTHR D£RFACD WITHO£T A£THORIZATION
th
9 Cir. (1988) Printing works from a book onto ceramic tile
[396]
Held: the copyrighted prints recast onto ceramic infringed the owners derivative works right ü the first sale doctrine doesn͛t help here ʹ only allows for resale not creation of derivative works
# IN ORuR FOR A WORK OF A£THORDHIP TO CONDTIT£T A uRIVATIV WORK, IT ©£DT PODDDD A D£FFICINT LVL OF CRATIVITY
th
7 Cir. (1997) ©ounting on ceramic tile
[398]
th
Held: Court disagrees with the 9 Cir. and finds that mounting on ceramic tile does not constitution an ͞original work of authorship͟ and is no different than mounting a picture in a frame or case
c Levi thinks this comes out the right way
Why should we read the derivative works in such a way that diminishes the first sale doctrine?
Can you look at each book or work and say that it is really a compilation of all the creative parts ʹ and it isn͛t just a whole work?
Technology will kill the current business model ʹ but then it will be the saving of true copyright property protection ʹ every little bit that is in a work has economic value and the owner should be able to use it ü this lead to
the cultural environmentalism of property theory = Ben uepoorter (property commons and anti-commons piece)
@p =
©ust derivative works be fixed to be deemed infringing?

c Concrete form required?
oc Lewis Galoob Toys v. Nintendo ʹ game genie game enhancer
oc ©icro Dtar v. FormGen ʹ uuke Nukem user-created content
c Outer boundary of the theory
c Incorporation?
c
oc ©icro Dtar = outer reaches of adaption right
# "2 A uRIVATIV WORK uOD NOT Nu TO B FI u, AD uFINu BY TH COPYRIGHT ACT, TO INFRING ON A VALIu COPYRIGHT
th
9 Cir. (1992) uevice that hooked into the Nintendo and altered the game features
[401]
Held: did not infringe upon the work ʹ it did not transform the work
c No fixation is necessary ü but then also said that a derivative work must incorporate a protected work in some concrete or permanent form
c Rejects the market analysis
c Dince the game genie is just an overlay to the game and doesn͛t transform the underlying work or create an independent work
c How is this different from the Deinfeld case? Wasn͛t that building upon the underlying work? ücould this be used to show that Galoob is wrong?
©

º
" TH £NA£THORIu CO©©RICAL PLOITATION OF COPYRIGHTu CO©P£TR GA©D, VN HIGHLY CO©PL GA©D IN WHICH TH £DR ACT£ALLY PARTICIPATD
th
9 Cir. (1999) IN ©ANIP£LATING TH GA© LVLD, ©AY CONDTIT£T INFRING©NT
[403]
Held: Court
c To qualify as a derivative work:
oc Work must exist in a concrete or permanent form
oc ©ust substantially incorporate protected material from the preexisting work
c They read in fixation requirement into the statute but then the incorporation must be substantial
c Integrated works: 1) outlink like webpages 2) frame an inline link 3) interact with previously made programs
oc All of these works are run by software and will embody its commands in a permanent form ʹ so even if the visuals are not always going to be there the instructions will always be there
c Taylor: Professor at uavis talks about derivative works as an overlay right that can be added to all the other rights ü it is not rational to look at derivatives works in a way that allowed it to be illegal to just imagine a
derivative work ü instead ü since the other rights require fixation
c Is a derivatives work protection justification only market driven? Dee page 386
oc uo they harm the market of the original work because they substitute in for the underlying work?
oc This is a justification for Galoob͛s enhancer ʹ it doesn͛t take away from the underlying work ü but does the derivative work infringe only if transforms the underlying work ʹ does it supplant the market
oc Protecting derivatives works is a natural rights theory ʹ because it allows the author to protect their right of integrity of the work and it does not allow someone else to hijack the work and make it into
something else ü this leads to moral rights
Linking and Framing

c Futuredonticsü linking webpage
c pop-up ads
©ORAL RIGHTD: TH A©RICAN VRDION ʹ NOT TDTu!!!!!!!
c uropean Notion: rights of personality/not economic rights

oc Paternity right
oc Integrity right
c Theories for protection under £D Law: K, unfair competition tort, Lanham Act ʹ see Gilliam but see uastar
c Post-Berne Legislation: VARA
oc Limited to works of visual art; doesn͛t apply to works for hire
c Note: TRIPD specifically excludes the moral rights provision of the Berne Convention ü why because the £D had a big hand in drafting it
p p p
"
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£NA£THORIZu uITING FOR RBROAuCADTING OF A TLVIDu PROGRA© CONDTIT£TD COPYRIGHT INFRING©NT
nd
2 Cir. (1976) ©onty Python ʹ ABC edited out 25% for TV viewing
[409]
Held: where a licensee is granted permission to air a derivative work, the license does not automatically confer the right to edit the work
c
c Included violation of the Lanham Act ʹ which is normally used in trademark law ʹ here because ABC advertised that he aired a ©onty Python and it did not because of all the editing
U ppp;
VARA was the first federal copyright legislation to grant protection to moral rights. £nder VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent
physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting and in some instances may sue the owner of the physical
painting for destroying the painting even if the owner of the painting lawfully owned it.
VARA exclusively grants authors of works that fall under the protection of the Act the following rights
* right to claim authorship
* right to prevent the use of one's name on any work the author did not create
* right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
* right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work. xceptions to VARA require a waiver from the author in writing. To date, "recognized stature" has
managed to elude a precise definition. VARA allows authors to waive their rights, something generally not permitted in France and many uropean countries whose laws were the originators of the moral rights of artists
concept. [1]
In most instances, the rights granted under VARA persist for the life of the author (or the last surviving author, for creators of joint works).

(!
A WORK ©Au FOR HIR ID CL£uu FRO© TH uFINITION OF VID£AL ART PROTCTu BY TH VID£AL ARTIDTD RIGHTD ACT
nd
2 Cir. (1995) Commissioned works installed in a building
[415]
Held: the works were found to be works for hire
c Can VRA claims be applied to ©icro Dtar ʹ or the tiles case?

c If you interpret derivatives works all the way to the boundary (broadly) and VRA the same way ʹ will you be having any real effect on artistic practices ʹ or the types of artistic works that will be made ʹ the
commercialization model that is now museum money ü should you take an industry specific approach to moral rights and that there is more moral rights in some kinds of industries than in others ʹ some kinds of
customs in some than others ü or not ü who is going to interpret the customs? What about areas that are new and unestablished arts? Like technology changes like second life? What happens with the old practices
shift based on the new?
©
% For the purposes of VRA protection, two elements must be satisfied for a work to be of ͞recognized stature͟
th
7 Cir. (1999) 1)c The work must have merit or intrinsic worth
[418] 2)c The work must be recognized by art experts, members of the artistic community, or society
City demolished sculpture in the quest for acquisition of the property for urban renewal
Held: Court concluded that the work was protected under VRA ʹ ©artin relied on newspaper and magazine articles and letters in support of the work ʹ is this really enough to show ͞recognized stature͟?
ppp pp
In copyright law, attribution is the requirement to acknowledge or credit the author of a work which is used or appears in another work. Attribution is required by most copyright and copyleft licenses
$

*+
º: Dection 43(a) of the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work
Dupreme Court (2003) Television series repackaged for video
[423]
Held: Lanham Act is a federal remedy against a ͞false designation of origin͟ ü what is origin? Because uastar took works that were in the public domain, copied it, made modifications and produced its very own series of
videotapes ü since he is the manufacturer he is the origin of the good ü to hold that the origin is the author of the idea would create a perpetual patent and copyright
c
c They don͛t make any mention the underlying work because the work was already in the public domain ʹ so they sue for a violation under the Landham Act ü they were misrepresenting the origin of the goods
c This is incredibly important in how it affects VRA ʹ so the only thing keeping us now in-line with the Berne Convention is derivative rights
c
Lemley ʹ copyright owners rights on the internet ʹ law review article
TH P£BLIC PRFOR©ANC ANu P£BLIC uIDPLAY RIGHTD ʹ RAu ALL OF THID CLODLY
It used to be that the reproduction right was the most important one in the music industry but now it seems to have shifted to the public performance right and perhaps the distribution right
p
To ͞perform͟ 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.
To perform or display a work ͞publicly͟ means Ͷ

(1) to perform or display it 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
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving
the performance or display receive it in the same place or in separate places and at the same time or at different times.
c Right of public performance is a recently recognized right

oc Right to perform dramatic composition ʹ 1856
oc Right to perform musical composition ʹ 1897
oc 1909 Act ʹ performance right recognized only for dramatic works and musical compositions + and limited to controlling only ͞for profit͟ public performances
c For profit includes restaurant music (Herbert v. Dhanley ʹ page 427)
oc 1976 Act: eliminated ͞for profit͟ limitation on the performance right
c Increased the categories of works subject to performance and display rights: literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audiovisual works
c Central Issue: what constitutes ͞public͟ performance?
oc 101 definitions
oc Turning on a radio or TV = public performance of works being broadcast
c Dhift from the ͞for profit͟ test for liability to the current focus under the 1976 Act on characteristics of place and/or audience
oc uefinition page 428
oc Columbia Pictures v. Redd Horne: ͞in store rental͟ of tapes open to the public even though movies seen in private booths in the store
c What constitutes ͞public performance͟?
c Dhift from the ͞for profit͟ test for liability to the current focus under the 1976 Act on characteristics of place and/or audience
oc Columbia Pictures v. Redd

(
A VIuO RNTAL PROPRITOR ©AY NOT HIBIT VIuOD TO TH P£BLIC WITHO£T A£THORIZATION
rd
3 Cir. (1984) In store rental of tapes open to the public even though movies seen in private booths in the store
[428]
Held: Court said that showing a video to the public is a violation of 106 ʹ for public performance
c Privacy is just an additional feature which doesn͛t change the character of the public performance
c In all of these cases the courts seem to be worried about market substitution that might arise
Renting videotapes for home viewing ü-------------------------------------ü rental for viewing in small booths at store open to public
Continuum
c
Hypos on page 431:
c Rentals from store desk/video players in booth
c Rentals from hotel desk/VCR at hotel desk ü found to be infringement
c Rentals from hotel desk/VCR in hotel room ü found to be NOT infringement
c Inmotion pictures: movies/uVu players rented in airports, viewed in flight, dropped off at destination
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 motion͙(101)
To perform or display a work publicly means:

c To perform or display it at any 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 (Redd Horne)
c To transmit or otherwise communicate a performance or display of the work to a place specified by clause 1) or to the public by means of any device or process, whether the members of the public capable of receiving
the performance or display receive it in the same place or in separate places and at the same time or at different times
U pp

To ͞display͟ 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. (101)
Right of Public uisplay: 106(5):

Confined to 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

% ,+6 Because images were not stored by Google/Amazon there was no public display
rd
th
9 Cir. (2007) Google Image Dearch ʹ thumbnail images stored on 3 party computers ʹ Amazon used Google͛s services in agreement to manage its search results
[D£PP 370]
Held: because the webpages were only instructing users computers to link to the pictures ʹ all HT©L instructions ʹ no infringement ʹ also the publisher͛s computer is the one that stores the images ʹ not Google
c
c ͞While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act unlike the Trademark Act does not protect a copyright holder against acts
that cause consumer confusion.͟
Contributory Infringement: TDT: did Google have knowledge? Could take simple measures to prevent further damage? Failed to take such steps ü the uistrict Court didn͛t fully consider the facts ʹ this was remanded
Vicarious Infringement: Google͛s supervisory powers are limited because it lacks the ability to analyze all the information ʹ NOT vicarious liable
The contributory infringement piece is a ticking time bomb and as technology gets better then it could be a larger issue
109(c) ʹ if you have a purchased copy then you are entitled to display it publicly but no more than one image at a time
Note: with the internet you always have overlapping issues so the theoretic question is: will relying the public display right protect users in the digital age?
p " pp

" p
Publicly: which includes transmissions to individuals in their own homes ʹ includes the internet
©ost cases on the internet involve the reproduction right - not the public display right which is happening all the time
rd
Video Pipeline v. Buena Vista Home ntertainment (aff͛d by 3 Cir. 2003) [434]: previews of motion pictures available for home distribution started streaming on the internet ʹ found to be violation of public performance and
public display rights
]ppp p pp

p
c 110 xemptions
c Legislative approach issue
c
c Policy Question: new exemptions because of technology? Or compulsory licensing approach?
oc Dome people don͛t like the compulsory licensing ʹ it doesn͛t allow the copyright owner any control over what happens with their work
oc Response to that is to limit the compulsory licenses
Note on uistance ducation Issues
Note on Cable and Datellite Retransmission Rights
Vp p p pp

Wrap up on performance and public display rights:
c Dhould posting works on the web ever be exempt from infringement liability?
c What about more limited web displays? uoes the TACH Act represent good policy?
c What about linking/framing?
c What about on-the-fly editing?
COPYRIGHT ANu TH ©£DIC INu£DTRY
p p 1

3p pp

c Players: songwriter, recording artist, music publisher, record companies, collective rights organizations, other licensing entities
c Dection 106(1) gives the owner of a copyright the exclusive right to reproduce the copyrighted work in phonorecord
oc However, that exclusive right is modified by the compulsory license provision of section 115
U p " pppp " pp p
p p VD p
c Phonorecord is a physical thing that contains two copyrightable items: 1) musical composition (literary work) and 2) recorded performance of that work (sound recording)
c This does NOT allow you to use the actual work ʹ you can only make your own recording of the song ʹ it doesn͛t matter if your song sounds identical to the originial
c Dound Recording: uistinct from the underlying musical composition ʹ so that the compulsory license that you get to cover a song does not give you a right to copy anyone else͛s sound recording ʹ what it gives is the
right to make your own recording (cover records)
c Compulsory license under 115: ͞cover͟ provision ʹ a musical composition that has been reproduced in phonorecord with permission and has been distributed to the public may generally be reproduced on other
phonorecord by other persons if they notify the copyright owner properly and pay a specified royalty
oc Applies only to non-dramatic musical works
oc Compulsory licensee has a limited right to arrange the work to fit his/her style of performance
c Are compulsory licenses justified? ©aybe for fears of monopoly back in 1909 ʹ but is that still the case ʹ is the nature of market power in the current music industry ʹ does it allow for the same kinds of bad things that
monopolists can do ʹ is it time to get rid of the compulsory license? ©aybe the current conditions don͛t involve the same kind of control ü so are they still necessary
c Only covers non-dramatic work ü dramatic works like opera music or potentially a soundtrack that is an integral part of the work cannot be covered by this license and the copyright owner and user have to negotiate the
terms
ü why is it that so few people use the compulsory license regime and instead jump to the harry fox system ʹ this is due to transaction costs ʹ if we are going to some compulsory license regime then will that create the
incentive for a private system that will allow for less transaction costs?
c
Notes from page 449: what if Cake͛s recording closely imitates Gaynor͛s version? No royalties for Gaynor. What if Cake͛s recording is played over the radio ʹ who gets royalties? The radio station only has to pay HF but not
the owner of the sound recording ʹ only the copyright owner ʹ public performance rights. What if the radio station simultaneously webcasts the recording?
p p ]

c Dound recordings and Dection 114: status of ͞sampling͟
c Only protects the elements of the sound recording itself
c ©ost of the time this is signed away by the artist to the recording company ü essentially then you are talking about big companies fighting it out ʹ not the individual artists
c This isn͛t like 115 ʹ this for sampling ü if you are going to have trademark values then deal with it in trademark
c Historically limited ʹ only federally recognized as of 1972
c uigital Performance Right in Dound Recordings Act of 1995 (uPRDRA) provides a limited performance right in sound recordings.
p p p

2 $ TH u ©INI©ID £D OF A COPYRIGHTu ©£DICAL CO©PODITION uOD NOT CONDTIT£T INFRING©NT
th
9 Cir. (2004) Newton sued the Beastie Boys for infringement when they used some short portions of his copyrighted music in their song
[450]
Held: no reasonable jury could find the sampled portion of the song to be quantitatively or qualitatively significant portion of the song as a whole
è

© $ º WHN AN ALLGu INFRINGR uOD NOT uIDP£T THAT IT DA©PLu A COPYRIGHTu DO£Nu RCORuING, A D£BDTANTIAL DI©ILARITY OR u ©INI©ID ARG£©NT
th
6 Cir. (2005) ©AY NOT B £Du
[455] Bridgeport owned the copyright to George Clintons song and uimension Films use a riff from the song in several different places in the movie
Held: a sound recording owner has a right to sample his own recording of a song ʹ but he just has to pay for that right
p p

Is this the right way to approach regulation in the copyright area?
Very narrow fix to the issue ʹ allows consumers to make analog or digital audio recordings of copyrighted music for their private noncommercial use
Balancing the interests:

c Compulsory licensing
c Royalty pool - manufactures pay a royalty for each recording device sold
p
p" p
Note on Dection 116: jukebox compulsory license permitted operators of jukeboxes to engage in public performances of copyrighted musical works so long as they paid a statutorily set fee and attached a certificate to the
jukebox
p p

ppp pp
Note on the Dmall Webcaster Dettlement Act of 2002
p &ppp pp

WTO says that section 110 violate part of our obligations under the treaty ʹ we say we are trying to deal with this and that remains our position
©usic Industry Wrap-£p

c Rules development not top down, but by accretion responsive to technological change
c Key: Lobbying
c
oc Think about interests of players
oc Think about selection bias re: participants
Is this institutional design the right way to implement the statute? Are we handing the rights to the right parties?
p p p
Who is an infringer?
c uirect Infringement Liability
oc Who counts as a direct infringer in light of changed technology?
oc Liability via authorization?
c Indirect Infringement Liability
oc Keys: deep pockets ʹ entities in a position to stop direct infringers ʹ more at stake? Try to deter the parties in the chain that have more to lose ʹ since the infringer usually doesn͛t have much to lose
oc Quite broad in principle (pebbles thrown into a pond)
uIRCT INFRING©NT

2 B£LLTIN BOARu OPRATORD ANu INTRNT ACCDD PROVIuRD uO NOT uIRCTLY INFRING COPYRIGHT WHR THRIu-PARTY £DRD £PLOAu INFRINGING COPID
ONTO A WBDIT B£LLTIN BOARu
1!#

Church of Dcientology ʹ former minister posted portions of a copyrighted work on a bulletin board website ʹ the website provider was asked to stop the infringer and
Nu CA (1995)
they refused
[473]
Held: Operators of the website were not direct infringers
c Are computer owners (or possessors) liable for copies made on their computers by third parties?
c What are the distinctions between bookstores, which are liable for infringing distribution (question 2, page 476) and entities like Netcom?
oc They are just like the makers of a photocopying machine ʹ not actually infringing ʹ a bookstore has more control over what they are selling ʹ active participation unless users posting on a bb
ü Copyright is a strict liability statute: a claim for direct infringement does not require any showing of intent or any particular state of mind
!p! *,!47!59-*,<,!
uirect-ish: Infringement by authorization?
c Congress͛ intent: authorization of an infringing act result in liability for contributory infringement (not direct infringement on its own)
c But what if the only act in the £D is authorization?
VICARIO£D LIABILITY ANu CONTRIB£TORY INFRING©NT
c What policies should guide liability for those who are not direct infringers but who in various ways
infringing activity? How broadly should liability extend?
͞Decondary Liability͟ ʹ Indirect liability for infringement
º
1) ON ©IGHT B VIACARIO£DLY LIABL FOR COPYRIGHT INFRING©NT IF H HAD TH RIGHT ANu ABILITY TO D£PRVID TH INFRINGING ACTIVITY ANu ALDO HAD
th
9 Cir. (1996) A uIRCT FINANCIAL INTRDT IN D£CH ACTIVITID
[480] 2) ON WHO, WITH KNOWLuG OF TH INFRINGING ACTIVITY, INu£CD, CA£DD OR ©ATRIALLY CONTRIB£TD TO TH INFRINGING CONu£CT OF ANOTHR ©AY
B HLu LIABL AD A CONTRIB£TORY INFRINGR
Like a flea market and the operator allowed vendors to openly sell counterfeit recordings of latin music copyrighted by Fenovisa
Held: Cherry Auction has sufficient control over the direct infringers, the vendors, to police their activities ʹ it also received substantial financial benefits from the infringing sales from the daily fees
üFonovisa alleged both control and direct financial benefit sufficient to state a claim for vicarious copyright infringement
c
lements of vicarious liability:
c Ability to supervise/control + direct financial interest
oc What do these standards mean post-Fonovisa?
lements of contributory copyright infringement
c Knowing contribution to infringing conduct
Dhould the Fonovisa court have been more interested in the potential non-infringing uses of swap meets? ü Dony Beta ©ax case
What if there was a landlord who was being held responsibility for the drug-dealing happening in his apartments?
c Why is there an inability to control?
c The infringing activity is a draw ʹ and they wouldn͛t have come otherwise ʹ people know they can get infringing stuff there ü so it can be seen that they received financial benefit from the infringing sales
Notes: provide a forum and support for the infringing activities ü vicariously liable ü can you no longer be passive?

2 LIABILITY FOR CONTRIB£TORY INFRING©NT PRTAIND WHN TH u HAD KNOWLuG OF TH INFRINGING ACTIVITY ANu D£BDTANTIALLY CONTRIB£TD TO TH
INFRING©NT, WHRAD VICARIO£D LIABILITY ARIDD WHN TH u HAD TH RIGHT ANu ABILITY TO CONTROL ANu RCIVD A uIRCT FINANCIAL BNFIT FRO©
1!#

TH INFRING©NT
Nu CA (1995)
P holds the copyrights to the works of Hubbard ʹ the founder of the Church of Dcientology
[483]
Held: the IDP may be contributory negligent but not vicariously liable
c IDP still has control over the system
c Received notice of the infringing use ü had knowledge
c No direct benefit financially from the infringing postings
lements of Contributory Infringement:

c Knowledge of infringing activity + induces, causes or materially contributes to infringement
oc How applied? Knowledge = notice + failing to take measures to prevent
lements of Vicarious Liability:
c Right and ability to control infringer͛s acts + direct financial benefit ü knowledge is NOT an element
oc How applied? Could control but no direct financial benefit so no vicarious liability because fees fixed
uoes Fonovisa override any of the reasoning in Netcom? Dee re vicarious liability
Are Fonovisa and Netcom doctrinally similar?
Contributory Infringement v. Vicarious Liability:

Are these distinct concepts?
c uo Fonovisa and Netcom cases treat them distinctly?
oc Are knowledge and the right to control synonymous? If one exist, must the other also exist? Question 2 486
c uo the elements of contrib. infr and vicar liable produce perverse incentives? Is ignorance bliss? Is that good?
LIABILITY OF uVIC ©AN£FACT£RRD
How far to extend secondary liability? How about ͞tertiary͟ liability: the investors in Napster? After all, but for them, there wouldn͛t have been such a service
Dony Corp v. £niversal City Dtudios (Dupreme Court 1984): Betamax VCR ʹ the system was capable of commercially significant noninfringing uses
c Dale of copying equipment not contributory infringement ͞if the product is widely used for legitimate, unobjectionable purposes͟
c Test: capable of ͞substantial non-infringing uses͟
c To discuss in next section: private copying for time shifting purposes ʹ Fair £se ʹ why is this fair use? We would have watched it anyway and they still see the advertising they would have seen if they had watched
it in real time
c Dony standard presents complexities in digital copying contexts
th
Napster ʹ 9 Cir. : 489
c Contributory liability when notified + ability to purge files
c Vicarious liability because financial benefit from ad sales + right/ability to control infringement
c
th
Aimster ʹ 7 Cir. page 489
c Contributory liability not avoided by structure
c ncryption based strategy = willful blindness ü could not be used to avoid contributory infringement liability
c ven if showing of non-infringing uses ʹ u has to show ͞disproportionately costly͟ to eliminate or reduce
c But, unlikely to find vicarious liability ü Posner is not fond of finding for vicarious liability in this situation so he would look to a richer contributory liability standard
c The facts pointed to an ͞invitation to infringement͟
©
!" !©
One who distributes a device to promote its use to infringe copyright, as shown by affirmative steps to foster infringement, is liable for the resulting acts of
infringement by third parties
"

#
[490]
Held: based on inducement
Grokster structured its architecture to avoid any centralization
Notes: Levi thinks these cases can be looked at in two different strands:
c uo all the cases point to knowledge of infringing uses as a key element for liability?
c Can you think of substantial non-infringing uses that we don͛t want to shut down?
ON-LIN DRVIC PROVIuR LIABILITY [501] ʹ NOT TDTu!!!!
Note on Dection 512:

c stablishes ͞safe harbors͟ that provide immunity from infringement liability under certain circumstances for a ͞service provider͟ that engages in
oc Transitory digital network communications
oc Dystem caching
oc Dtoring information on its systems at the direction of users
oc Providing information location tools like hypertext links
Note on Identifying the uirect Infringer

c Verizon͛s fight to keep its users anonymous
CRI©INAL INFRING©NT ʹ NOT TDTu!!!!!
The 1976 Act does have criminal liability for infringement done ͞willfully and for purposes of commercial advantage or private financial gain͟
Felonies for mass infringing amounts of copies
£ ©
Liability for criminal copyright infringement requires a showing that the infringement was a ͞voluntary, intentional violation of a known legal duty͟
N NB (1991) Video store ʹ made copies to ͞insure͟ himself against customers stealing the videos
[513]
Held: for it to be willful there needs to be an intent of infringement ʹ ©oran thought he was doing something legal to protect his business
£ #© In the copyright act, Congress specified the criminal penalties for copyright infringement, and these specific penalties should not be supplemented without
N ©A (1994) Congressional action
[516] ©IT student created bulletin board
Held: the gov͛t cannot hold someone under a charge that is not listed under copyright ü in response Congress enacted the No lectronic Theft (NT) Act
Note on the internet-ra Amendments to the Copyright Felony Provisions

c
ppp
pp
Notes: these cases are unpredictable

c Challenges of Fair £se from Professor Paul Goldstein
c There are different kinds of contexts for which people want to use other people͛s works ʹ and each of these contexts have different social norms
A. FAIR £D IN CO©PARATIV PRDPCTIV
Judge made doctrine
§ 107 Limitation on xclusive Rights: Fair £se

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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include Ͷ
(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.
B. TH uIFFRNT FACD OF FAIR £D
3 ©ajor Categories of Fair £se Cases Identified in the Casebook:

1.c Cultural Interchange: uses that further the development of common culture ü entertainment, connection, human interaction
a.c How far should fair use privilege uses in the name of cultural progress go?
2.c Technical Interchange: cases relating to the interoperability of computer software and hardware ü reverse engineering ʹ almost anti-trust cases
a.c Consumer benefits, necessity of standardization
3.c ©arket Failure of ͞Productive Consumption͟: cases developing a theory for the recognition of fair use
a.c But if the market can actually deal with situations where the work could be fair use then the market should control ʹ fair use should have a bigger footprint rather than just in the face of market failure
c
p
There is a hidden cost to unpredictability ü people are probably not using some works that are fair use for fear of being sued ʹ so the common cultural works suffer as a result from this risk adverse fear and behavior
(

&
2 P£BLICATION OF PORTIOND OF A WORK DOON TO B P£BLIDHu IN NOT FAIR £D
Ford͛s manuscript quoted in magazine

[531]
(O͛CONNOR) Held: the notion behind copyright fair use is allowing someone to use the work in a situation where the copyright holder would likely grant the use ü it is not reasonable to expect a copyright holder to allow
another to ͞scoop͟ it by publishing his material ahead of time
c Four Factors to Consider:
oc Purpose of the £se ü usually fair use works do not compete economically with the copyrighted work
oc Nature of the Copyrighted Work
oc Amount and Dubstantiality of the Portion £sed
oc ffect on the ©arket ü this use lessened the market value of the copyrighted work
c
Levi was very upset by this outcome and thought that Nation should have won
Comment on page 534: should the original artist have to ask permission to allow for the parody? üshould you recognize a custom of permission asking? Then how should it come out when the artist denies the right?
(BRNNAN) uissent: why is 300 words of a 200,000 manuscript infringement?
%%!© TH CO©©RCIAL P£RPOD OF A WORK ID ONLY ON L©NT OF TH INQ£IRY INTO TH WORK͛D P£RPOD ANu CHARACTR FOR FAIR £D P£RPODD
Dupreme Court (1994) Two Live Crew Case
[538] $%
%

(DO£TR) Held: reversed to evaluate the song including the other factors
Questions to Ask:
c Why is parody the paradigmatic F£ situation? ü it is criticism and you have to copy a certain amount of the original to make the commentary ü and you would never get permission for the use
c Is F£ to be limited to parody post-Campbell?
c Why about the shirt away from the ͞conjure-up͟ test of prior parody cases?
c The Court here does not look at the question addressed in Castle Rock ʹ whether the original artist was going to try to get into the market that the new work captured the market of
c Comment on page 540: if Holmes is right about infringement in that Courts should not be determining what is good art ʹ and maybe it is right to say that courts should not be able to cut off people getting
copyrights just because they don͛t like the work ʹ does this analysis apply to fair use? The court doesn͛t even assess this idea ʹ and just assumes the application of the nondiscrimination principle
oc Is the nondiscrimination principle right to apply to fair use? ven though it is usually applied to copyrightability? This would lead to judges making social calls on works
Kennedy͛s Dtatement in His Concurrence: the fair use factors keeps parody within the proper limits ü fair use is an affirmative defense so doubts about whether a given use is fair should not be decided in favor of the self-
proclaimed parody͙.any parody can be interesting and if we allow any weak transformation to be a parody and undermine the goals of copyright ü not assured that the song is a fair use and the discussion of the factors
could lead the district court to find that the song is not a fair use ü seems to want a parody to be a higher standard of commentary on the original work ʹ and not just handed out easily and allowing for works to just make
money by loosely calling itself a parody
c
Harper & Row Campbell v. Acuff-Rose ©usic

©ajority uissent
Nation made ͞news event͟ out of its News reporting is in preamble to 107; *8)E-*'* Test: the more transformative the work, the less will be the significance of other factors
authorized first public action; its use was manuscript т illegal (commercialism)
commercial (standard = ͞whether the user
stands to profit from exploitation of the Transformative Character
copyrighted material without paying the
customary fee͟ ʹ see connection to Factor Parody v. Datire
4); purloined/no good faith; no Parody is covered by fair use because it needs the original work to make its point and Datire can
independent commentary, research or stand on its own ʹ it is broader in that it is commentary on society as a whole ʹ doesn͛t need a
criticism work
News v. Independent Commentary ü But what if this parody is taking away the owner͛s derivative market?
£npublished & F£ is narrower w/r/t No presumption against fair use of * Test: some works are closer to the core of intended copyright protection
unpublished works; use ͞exceeds that unpublished works; given impending
necessary to disseminate the facts͟ [534] publication, interest in confidentiality If parody, this factor not as important b/c parodies invariably copy publicly known expressive
was outweighed by public value in works
dissemination
Heart of the Book 300 out of 200,000 = quantitatively 7!0! xtent of permissible copying varies w/purpose & character of use
infinitestimal and qualitatively ͞not Context is key (this grants a lot of discretion to the judges)
gratuitous in relation to the news
reporting purpose͟ Parody may require use of ͞heart of the work͟
©ust be tied to first factor

*0 ' uefendant must show ͞favorable evidence͟ about relevant markets: market for original + market
1!+5+69-),!46 for derivative works
7),78*!67!
,*)3FVV ü,)-,) When use is transformative, usually no substitution
),66*8);78566=
Harm causes by criticism is not cognizable
If you look at the cases ʹ it seems as if market harm is extremely important ʹ but the question is ʹ what is the market? Fair use market? uerivative works market?
uo you include all potential markets?
In every fair use case ʹ you can show there has been some adverse effect on the market
Fair use is an example of how the copyright law has balanced the needs of the public and the author ʹ and the more you constrain the public works then the more you tip the balance between the owners and public
What makes the parody so special? It is out of necessity ʹ that in order to do a parody you have to use some of the underlying work?
Parody: literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. Copyright law recognizes that a parodist must use some elements of a prior author͛s composition in
order to create a new one that comments on that author͛s work. It needs to mimic an original to make its point, but it may or may not be fair use depending on whether it could be perceived as commenting on or criticizing
the original.
Datire: in which prevalent follies or vices are assailed with ridicule ʹ or are attacking through irony, derision , or wit
By definition, isn͛t every satire at least in some way a parody?

ur. Deuss Case: OJ Dimpson trial ʹ used the rhyme scheme in the cat in the hat ʹ example of a situation that is a satire that is not actually focusing on the underlying work
st
1 Amendment Argument: question as to if there are other avenues to express your dissent? Is it necessary to use the work in order to make your commentary? Who is to say what is adequate?
c
The Wind uone Gone: how far should we extend parody to serious works constituting ͞transgressive readings?͟
c The court finds that there is a finding of fair use ʹ why?
c The court discusses parody and says that parody for uses like under Campbell can be extended to non-funny works
c A parody if its aim is to say something critical about the underlying work then it can still be parody and useable as fair use even if the underlying work is a work of fiction rather than scholarly article
c It just has to be a fictional or artistic critique ʹ scholarly, news, novel ʹ doesn͛t matter for the application of fair use as long as it is a critique
c Is it necessary to quote the prior work? Dhe does ͞transgressive rewriting͟ she uses the rewriting to criticize the racial issues held within the book ʹ so why shouldn͛t it be fair use just because she wrote it in story
form?
What about Harry Potter͛s book written from Voldermort͛s view? What would be the point of a book written from his prospective͙it wouldn͛t be scholarly͙should this fit or not fit within this transgressive rewriting?
2

CIRITICAL BIOGRAPHID FALL CO©FORTABLY WITHIN TH FAIR £D PROVIDIOND OF TH COPYRIGHT DTAT£T
Church of Dcientology ʹ quoted widely Hubbard͛s works in make his points
"

nd
2 Cir. (1990)
[548]
Held: not copyright infringement ü ͞purposes such as criticism . . . scholarship, or research, is not an infringement of copyright͟
1.c Bios in preamble & use to ͞make his point͟
2.c Factual and informational + customary
3.c % acceptable + works published
4.c No impact on market for authorized bio
Why did the church of scientology sue for copyright infringement? They didn͛t want the religion criticized
nd
2 Cir had a big difficulty with what to do with unpublished works:
c Harper & Row: the unpublished nature of the work is a key, through not necessarily determinative, factor tending to negate a defense of fair use
c One response: was quotation necessary to prove facts or simply chosen to ͞enliven the text?͟
nd
c 2 Cir. and the New ra cases
oc Why is the publication status the key?
st
oc What about the 1 amendment and P͛s attempts to use copyright as a sword, to deflect criticism?
oc 107 Amendment ü makes the unpublished fact a key but not determinative ʹ like Harper & Row?

One factor of an analysis of fair use is whether the new work has a transforming purpose, that is, whether it adds something new, with a further purpose, to the
original work
"

nd Book of trivia questions about the Deinfeld show
2 Cir. (1998)
[551]
Held: the quiz book did not add something new and lacked a transformative purpose
c ͞cashing in͟ or ͞participating͟?
c Castle Rock: how did the court define the following?
oc Transformativityü did not add something new
oc Nature of the work ʹ fictional
oc Portion £sed: significant portion directly from the series
oc Potential market ü the copyright holder could have developed this derivative market ( even though the copyright holder did not have any interest in exploiting that market)
c Could you argue that the DAT quiz is a parody?
26

2 The reproduction of photographs for a good-faith newsworthy purpose constitutes fair use
©iss £niverse Puerto Rico for her modeling portfolio ʹ she was nearly nude in one of them ʹ the photographer sued for the printing of the photos in the newspapers

st
1 Cir. (2000)
[554]
Held: the use of the photos in the newspaper was to ͞inform͟ and to ͞gain commercially͟ with its publication of the photos
c Photos used not only to titillate, but to inform, transformed into news
c Both factual and creative
c Copying less than whole would have made picture useless to story
c
c No market for sale of these pictures (including sale to other newspapers)
What is ͞transformativity͟?
c Dhould transformativity be extended to uses in different contexts? Or should the works be transformed themselves to be fair use?
c Cases extending transformativity:
oc Bill Graham Archives:
oc Grateful uead [D£PP]
oc Perfect 10 [D£PP]
Dony Case discussed in Campbell: pay attention to the court͛s use of transformative use
This gives us an opening about what transformativity means
When you look at his question within the internet
è "

$

Grateful uead book with event poster reproductions and tickets ʹ reduced form
å
#
nd
2 Cir. (2006)
[D£PP 387]
Held: that it was fair use
c Purpose of the £se ütransformatively different from the original - for historical artifact
c Nature of the Copyrighted Work ʹ artistic expression and promotion
c Amount and Dubstantiality of the Portion £sed ü reduced the size ʹ less than 1/5 of 1% of the book ü just because they copied the entire work doesn͛t necessisarily weigh against fair use ʹ sometime you have
to copy the entire work to make a fair use of the image (Nunez)
c ffect on the ©arket ü does not exploit the use of BGA͛s images as such for commercial gain
oc ͞the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without
paying the customary price͟ from Harper
Tension between fair use and moral rights of an author ʹ the right to integrity includes the right to object to modifications of the copyrighted work and also to any ͞distortion͟ or ͞mutilation͟ of the work ü these
modifications may result in the creation of derivative works and may then be excused by the fair use doctrine
st
Note on Fair £se and the 1 Amendment
U pp
Reverse engineering as fair use : it is used to promote expansive access to functional type works so that the interoperability of computer software cases is where these issues arise

# ' uisassembly of a copyrighted object code is a fair use of the material if it is the only means of access to uncopyrighted elements of the code and there is a legitimate
th
9 Cir. (1992) reason for seeking such access
[562]
Held:
FAIR £D ANALYDID
1.c purpose and character üdoes the copier have a legitimate reason? ü wanted to become a legitimate competitor in the field of Dega compatible video games (making more expression available to the public)
2.c nature of the workü must be afforded a lower degree of protection than more traditional literary works because they contain unprotected aspects that cannot be examined without copying
3.c amount usedü the disassembly should receive little weight
4.c effect on marketü may have an effect but probably very little
: Intermediate infringement of copyrighted materials where the final product does not contain infringing material is likely to be viewed as fair use
th
9 Cir. (2000) Connectix took Dony͛s software BIOD and used it to create a video game system on ©acs
[567]
Held: Dony͛s BIOD is far removed from the core of intended copyright protection because it contains unprotected aspects that cannot be examined without copying ʹ the final product did not contain infringing material
c
FAIR £D ANALYDID
1.c purpose and character ü wholly new product from Dony͛s PlayDtation
2.c nature of the workü video game software
3.c amount usedü copied the whole thing
4.c effect on marketü wholly new product despite its similarities to the uses and functions of the PlayDtation ʹ less likely to cause a substantially adverse effect on the potential market for the PlayDtation
There should NOT be a provision in the copyright law that prevents competition

% ,+6 Google͛s use of showing thumbnail images of full-size images
th
9 Cir. (2007)
[D£PP 392]
Held: Court also held that in-line linking was not a public display ʹ only transmitting HT©L instructions not the image itself
uIDPLAY RIGHT: DRVR TDT: display is the act of serving content over the web ʹ physically sending ones and zeros over the internet to the user͛s browser üwhere is the information held?
c Google uIu store the thumbnails ʹ direct infringement (uistrict Court)
c Google uIu NOT store the full-size images ʹ not direct infringe
uIDTRIB£TION RIGHT: did not distribute
FAIR £D: relied on Arriba͛s transformative use of the thumbnails
1.c purpose and character ü electronic reference tool ü search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work while a parody typically has
the same entertainment purpose as the original work
2.c nature of the workü creative
3.c amount usedü necessary to copy the entire image
4.c effect on market üdoesn͛t hurt the market and declined to address the use for cell phone images
Conclude that significantly transformative nature of Google͛s search engine, particularly in light of its public benefit outweighs Google͛s superseding and commercial uses of the thumbnails in this case
Court Holds: vacated the preliminary injunction against Google on the issue of the thumbnails ʹ fair use
c Google image search is making copies of the pictures in a thumbnail form

c The court is focusing on largely the public use of this search engine
c Just like in Kindersly ʹ how far is the court going to allow transformation?
c Because they can͛t substitute for the original market OR
c if a work is being used in a different context for a different purpose then that aut to be transformation ʹ conceptualized transformativity
c the court reads this second factor as whether it has been published or unpublished ʹ it scews the interpretation of factor 2
c use of the whole picture ʹ is it necessary to the u͛s use? ü yes ʹ Google does have to use it ʹ otherwise you can͛t recognize the picture
c is there a harm to the market ʹ what about the cell phone download market ʹ the court sidesteps this question and said that the customers haven͛t shown
Levi͛s questions:
c what if this service is not just an indexing service ʹ but a comparison shopping service?
Goldstien: thinks that the Court didn͛t analyze the case correctly ü thinks that this is NOT transformation ʹ just moving from one medium to another ʹ which shouldn͛t be fair use
Dome critics argue that we should get rid of transformativity as a factor because it really doesn͛t help us interpreting fair use
How should it be interpreted and what its scope should be ü

c with these cases ʹ there is a possibility of going either way
c the internet is highly regulated by private power through the search engines ü they completely determine how knowledge is searched, found, used, remixed ü so a social argument that the new technologies provide
is the necessity of the index for being able to deal with this mass of material out there and the need to have some way of organizing
c if Google cannot stop people from illegally uploading copyrighted material ʹ then the index function might be tainted ʹ then what we are talking about is not putting too much restriction on the indexing then this is
why the Court is just focusing on the usefulness of indexing ü issue of social access ü why should this use be considered fair ʹ contextual? Then how do you characterize the context to come out one way or another
p 1 p p 3

c
Productive Consumption: (Blackmun) fair use promotes external benefits that everyone can value ü if it is not productive consumption then why should we grant fair use
©arket Failure: if there is too high of a transaction costs to deal with the market failure then there will be more fair use?
£
The marketing of videocassette recorders does not infringe on the copyrights of recorded works
Dupreme Court (1984) Betamax
[576]
(DTVND) Held: home off-air recording of publically broadcast television programs is fair use because it is noncommercial (first factor) and there is no evidence of meaning likelihood of future harm ( fourth factor)
TI© DHIFTING ID FAIR £D
It is copying of the whole work with absolutely no transformation ü entire copying

Also ʹ not just time shifting ü you can fast forward through the advertising
There is a market out there for secondary markets for the shows on uVu
Repurposed broadcast programming moved to cable
Focused on the fact that the use was noncommercial ʹ so what is commercial? Go to American Geophysical £nion
Puts the burden on the P!
FAIR £D ANALYDID

1.c purpose and character üthere are noninfringing uses
2.c nature of the work ü throws out conclusory
3.c amount usedü throws out conclusory
4.c effect on marketü private time shifting is noncommercial in effect
Interesting that the court did not look to intent like they did with Napster and Grokster
Note on Productive Consumption
!*0,6*-*9 Wendy Gordon ʹ market failure theory to explain the outcome of some fair use cases [583]
c Fair £se should be awarded when
oc ©arket failure is present
oc Transfer of the use to defendant is socially desirable
oc An award of fair use would not cause substantial injury to the incentives of the P copyright owner
c Lydia Pallas Loren criticized courts for using the market failure approach and that high transactions costs does not encompass the full range of considerations that a proper fair use analysis should address [597]

" £ : the practice of circulating copies of scientific journals so that employees may copy articles contained therein does not constitute a fair use
©akes an infringement argument ʹ but in fact it was fair use analysis

nd
2 Cir. (1995)
[585]
Held: not fair use
uid not look to Dony for guidance
FAIR £D ANALYDID

1.c purpose and character üeven though it wasn͛t a commercial use the company itself was commercial ü they didn͛t look just at his department but the organization as a whole ʹ expansive use
2.c nature of the work üfactual works
3.c amount usedü whole amount
4.c effect on marketülooked at the permission market and it showed market harm
uissent: thought that the market harm was a circular argument

£

© The reproduction of copyrighted educational materials into coursepacks by a commercial copyshop for sale to students does not constitute a fair use
$

c
th
6 Cir. (1996)
[591]
Held: not fair use üThere is no blanket immunity for copies for classroom use
FAIR £D ANALYDID

1.c purpose and character ücommercial use
2.c nature of the work ücopyrightable
3.c amount usedü 5-30% - but the professors took the most important parts that had significant value in relation to the works
4.c effect on marketüuse was noncommercial so the copyright owner has the burden of showing the market effect of the use ʹ if it is commercial then the alleged infringer has the burden ü if the copy shops do not have
to pay the licensing fees then it does affect the value of the works
uo you like the productive use or market failure theory of fair use?
c Fair use could be diminished
Note on Texaco, ©uD, and the uebate Over ©arket Failure Theory
&©
2
The retransmission by a service of original works and the free distribution of those works to users of the service does not constitute fair use
th
9 Cir. (2001)
[600]
Held: no transformative use
How far should the arguments about ͞productive consumption͟ reach? There is something productive in the social network and the opening up of the possibility of creative remixing and social cohesion
FAIR £D ANALYDID

1.c purpose and character üretransmits original works in a different medium
2.c nature of the work ücopyrightable
3.c amount usedü whole amount
4.c effect on marketüharms the recording companies͛ market by reducing audio Cu sales
Possible theories of fair use:

c fair use plays a role in copyright principally to the extent that it cures ͞market failures͟
c fair use can be theorized as a species of justifiable
c ͙͙͙͙͙͙͙͙͙͙͙..
p p A
u©CA: why isn͛t decryption fair use? The encryption also seems to limit the limited times argument ʹ unconstitutional?
p
pp p A
c Civil Remedies:
st
oc Preliminary and permanent injunctions (502) ( why is this justifiable when we have the 1 Amendment?)
oc Impoundment and the destruction of infringing articles (503)
oc ©onetary damages, including the copyright owner͛s actual damages plus the infringer͛s profits, or statutory damages (504) and
oc No punitive damages
c Criminal penalties: see 506(a)

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Copyright Industries Concerns:

Implications ʹ Questions Raised

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Jessica Litman, The Public uomain

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Dhould go back and read the notes from this section?

Restatement Third of Agency ü doesn͛t mention the factors

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Note on the Freedom of Information Act (FOIA) and Copyright

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