Copyright Law: Spring 2012- Professor Moffat I.

Authors, Writings, and Progress A) Three Requirements for Copyright

a. Fixation in a tangible medium of expression

b. Original authorship c. Not an idea, procedure, etc. B) The Elements of Copyrightable Subject Matter a. Fixation i. Fixation occurs when a work is sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for more than a transitory period of time ii. A Functional Approach 1. Williams Electronics, Inc. v. Artic International, Inc. a. FactsArctic created a knock-of version of Williams' original game. Arctic argues that because the images are redrawn each time, the work is not "fixed" and therefore cannot be protected by copyright b. ConclusionCourt affirms decision in favor of Williams. A substantial portion of the images are the same every time. the work is permanently embodied in the ROM Rule"fixed" means sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for more than a transitory period
c. 2. Digital Technology: MAI Systems Corp. v. Peak Computer, Inc.

FactsMAI made and maintained computer software. The software came with licenses that allowed the user to run the program but did nto allow use by third parties. Peak poached MAI employees and started maintaining MAI systems. MAI claims that by running the software, Peak infringed MAI's copyright.
a.

ConclusionAppellate court affirms for MAI because loading the software in the RAM was sufficient for copying.
b. c.

RuleSee Williams Electronics

iii.

A Technology-Specific Approach: Transmission & Contemporaneous Fixation, & the Problem of Bootleg Recordings 1. Live Transmissions and Broadcasts a. Congress' specific/narrow solution for fixation and live broadcasts
i.

a work being transmitted is "fixed" if a fixation of the work is being made simultaneously with its transmission. 1. Being recorded as transmission occurs

b.

Congressional Amendment with TRIPS i. ii. iii. Protection is required for live musical performances Prohibits fixation or transmission of live musical performances Prohibits the distribution of copies of live musical performances

c. b. Originality i.

10th Circuit has extended protection to unfixed live performances

Feist Publications, Inc. v. Rural Telephone Service Co. 1. FactsFeist competes with Rural (a public utility) to sell advertising space in a directory. Feist used info from Rural without consent 2. ConclusionNot sufficiently original for copyright 3. RuleFacts are generally not copyrightable, compilations of facts may be original (selection, arrangement, coordination) 4. TESTIs the work independently created? Does it possess some minimal degree of creativity?

ii.

The Road to Feist 1. Burrow-Giles Lithographic Co. v. Sarony a. FactsSarony Sues Burrow-Giles for copying a photo of Oscar Wilde. B argues a photo can not be copyrighted b/c it is nor original, it merely captures the exact features of the subject. b. RulePhotos are original in that the photographer gives his mental conception form by posing the subject, choosing wardrobe, lighting, etc.

i. Congress can authorize copyright in all forms of writing "by which the mind of the author are given visible expression so far as they are representative of the original intellectual conceptions of the author. 2. Bleistein v. Donaldson Lithographing Co. a. FactsA circus had potters made by Bleistein but ewnt to Donaldson to make more copies using the same design. Posters were illustrations of the circus performers. b. RuleIllustrations made of real subjects are original creations. Illustrations used for commercial purposes are still entitled to copyright protection. 3. Alfred Bell & Co. v. Catalda Fine Arts, Inc. FactsBell makes mezzotint reproductions of public domain artwork, a process that requires a lot of work but can be easily reprinted. Catalda reprinted these in books, argues that the mezzotints are not original.
a.

b.

ConclusionCourt finds for Bell i. Original should be read to mean "owes its origin to the author" not that it is particularly novel. These works are akin to translations of public domain works or maps (which are ideally identical). These are artistic interpretations.

iii.

Some Contemporary Originality Problems 1. Meshworks, Inc. v. Toyota Motor Sales FactsMeshworks made digital wire frame models of cars. M argued that each subsequent use of the digital images were infringement.
a.

Conclusion The digital images are not sufficiently original because they depicted no more than vehicles as vehicles.
b.

2. Mannion v. Coors Brewing Co. a. FactsMannion photographed a famous athlete for a magazine. Coors used a very similarly dressed, staged, and posed photo in an ad. Mannion sues. b. c. ConclusionThe Mannion photo is original Protectable elements of photographs

i.

Rendition 1. Angle, light, share, exposure, technique, etc.

ii.

Timing 1. Photographer is at the right place at the right time

iii.

Creation of the subject 1. Artist makes creative judgments concerning the technical matters with his camera and the use of light

c. The Idea/Expression Distinction i. Form vs. Function vs. Fair Game 1. Baker v. Seldon FactsSelden published and copyrighted a series of books for bookkeeping, Baker published a bookkeeping book that used a different method to produce the same system. Selden sued Baker
a.

b. Rulecopyright does not give an author the right to prevent others from using the methods therein described ii. Complications
1. A.A. Hoehling v. Universal City Studios, Inc.

FactsHoehling, a historian, wrote a book about the Hindenburg disaster that speculated it was to be blamed on a saboteur. Later a novel and movie were made about the disaster also using a saboteur. H sued for Mooney infringement. Mooney argues the plot of H's book is an idea or historical fact that cannot be copyrighted.
a.

b. ConclusionCourt finds for Mooney because H's work was one of historical facts RuleIn works devoted to historical subjects, a second author may make significant use of a prior work, so long as they do not bodily appropriate the expression of the original.
c. 2. American Dental Association v. Delta Dental Plans

FactsADA published a book that codified dental procedures for data entry. Delta published a book dentists could fill in using the code and also the ADA's code. Delta argues a taxonomy cannot be copyrighted
a.

b.

ConclusionAppellate Court reversed in favor od ADA

c. RuleThe ADA cannot stop others from distributing the forms that facilitate the use of the ADA code, but CAN prevent others from distributing the code itself.
i.

A taxonomy may be copyrightable because facts do not supply their own principles of organization

iii.

Material not subject to copyright 1. Words, short phrases a. Names titles, slogans, familiar symbols, lettering, coloring, etc.

2. Ideas, plans, methods, systems, devices 3. Blank forms 4. Works consisting entirely of information that is common property containing no original authorship (calendars) 5. Typeface as typeface d. Derivative Works & Compilations
i.

103 Compilations and Derivative Works 1. Copyright extends to compilations of derivative works. Extends only to the material contributed by the author of that work. 2. Independent of and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright of preexisting material

ii.

Derivative Works 1. L. Batlin & Son, Inc. v. Snyder FactsThe design of an Uncle Sam bank fell into public domain. Snyder designed a very similar bank and registered it for copyright protection. Batlin a competitor then made a similar toy. B sued to have the copyright declared invalid because it was too derivative of the original.
a.

b. ConclusionCourt finds for Batlin because differences between Snyder's version and the original were too miniscule c. RuleA reproduction CAN be afforded limited copyright protection in the distinctive features but MUST contain an original contribution not present in the underlying work of art
2. Entertainment Research Group. v. Genesis Creative Group

FactsERG made inflatable costumes. Their competitor GCG made similar costumes based off some of the same characters.
a.

Conclusion Court finds for CGC and Aerostar because the costumes were sufficiently different enough that they were copying the underlying character and not ERG's designs
b.

c. Rulea derivative work that is sufficiently different from an underlying work is copyrightable d. TEST i. The derivative work must have original aspects that are "more than trivial"; and ii. Granting the copyright in the derivative work will not affect the copyright protection in the underlying work iii. Compilations 1. 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. 2. Feist Publications v. Rural Telephone
a. b.

FactsSee above

ConclusionRural's compilation not copyrightable because they were totally typical in arrangement c. Three Elements of Compilations i. Collection and assembly if pre-existing materials and facts

ii. The selection, coordination, or arrangement of those materials, and

iii.

The creation, by particular selection, coordination, or arrangement, of an original work of authorship

3. Roth Greeting Cards v. United Card Co. FactsRoth sues United for using the same phrases in their greeting cards. United argued their illustrations were original and that the phrases are not subject to copyright
a.

ConclusionAppellate court concludes that the card should be taken as a whole and that the whole card is protectable as a compilation
b.

RuleA compilation 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
c.

4. Mason v. Montgomery Data, Inc. FactsMason published real estate maps of Montgomery. Montgomery Data reorganized that map to make its own maps. MD argued that the information they used were public facts
a.

ConclusionCourt finds for Mason because maps can be drawn in various ways and are therefore creative expression
b. c.

RuleSee Feist

II.

Who is an Author?
A) 201 Ownership of Copyright

B) Sole Authorship a. Lindsay v. The Wrecked & Abandoned Vessel R.M.S. Titanic
i. FactsLindsay was shooting a documentary and then had his crew shoot some of his own

footage for his own project. The defendant sold the footage to the discovery channel. ii. ConclusionCourt finds for Lindsay; he owns copyright even though his crew shot the footage iii. RuleWhere person exercises such a high degree of control over a film operation such that the product duplicates his conceptions and visions of what the film should look like, he may be said to be the author.

C) Joint Authorship a. A work prepared by 2+ authors with the INTENT that their contribution be merged into INSEPARABLE or INTERDEPENDENT unitary wholeWhat level of contribution is sufficient? i. All co-authors receive equal interests in the work which pass to heirs upon death ii. Permission of all co-authors is required for an assignment or an EXCLUSIVE license of copyright 1. Any author of a joint work may grant nonexclusive license without the consent of others b. Erickson v. Trinity Theatre i. FactsErikson worked for the theater where she helped prepare three plays. The theater continued performing the plays after Erikson quit. She sued arguing it was a joint work. ii. ConclusionCourt found for Erikson iii. RuleA product is considered a 'joint work' ONLY IF the each collaborator can be considered an author 1. One must supply more than just mere direction or ideas iv. De Minimis Test1. Where everyone who contributes to a work is a co-author
v. Copyrightable Subject Matter Test (This one!)

1. A contributor is a co-author if that persons contribution would be theoretically copyrightable on its own c. Aalmuhammed v. Lee i. FactsSpike Lee movie about Malcolm X. Aalhummamed helped consult about religion and characters.
ii. ConclusionAalmuhhamed loses because he had no control over the work

iii. Rule/ Joint Work Requirements1. It is a copyrightable work 2. 2+ authors

a. Each author makes an independently copyrightable contribution 3. Intent for contributions to merge as a unit D) Works Made for Hire a. Definition i. A work prepared by an employee w/in the scope of employment
ii. A work specially ordered or commissioned for use as a contribution to a collective work if

the parties expressly agree in a written instrument b. Who is an employee? i. Community for Creative Non-Violence v. Reid 1. FactsReid built a nativity scene for CCNV to dramatize the plight of the homeless. CCNV wanted to take it on tour, but Reid said it wasn't strong enough and refused to return the sculpture. Reid argues he is a co-author, CCNV says it is a work for hire. 2. ConclusionReid was an independent contractor and not an employee 3. Factors for Works for Hire a. Hirer's right to control the manner and means b. Skill required
c. Source of instrumentalities and tools

d. Location of work e. Duration of relationship /b/ parties f. Whether hirer has right to assign additional projects g. Extent of discretion over when and how long to work h. Method of payment i. Hired party's role in hiring/paying assistants j. Whether work is part of regular business of hiring party k. Benefits/Tax treatment ii. Aymes v. Bonelli

1. FactsBonellu hired Aymes to write computer programs, no agreement over copyright ownership. Aymes did most work in office, sometimes paid hourly sometimes by project. Bonelli did not pay for health insurance or taxes. Dispute over ownership.
2. ConclusionCourt found for Aymes

3. Rulethe factors in CCNV are not to be considered equally c. What is the scope of employment? i. Roeslin v. District of Columbia 1. FactsRoselin worked for Dept. of Employment. On his own time with his own resources and often in his own home, he developed a computer program for use at work. He received no compensation and later the office used his work. 2. ConclusionNot a work created within the scope of employment ii. Teacher Exception
1. University teachers are traditionally the owner of copyright in their writings and

scholarly works notwithstanding their status as employees

d. 101(2) & Specially Ordered or Commissioned Works i. 9 Categories that are eligible to be "works for hire" of the parties agree

1. Contribution to a collective work 2. Part of a potion picture or A/V work 3. A translation 4. A supplementary work 5. A compilation 6. An instructional text 7. A test 8. Answer material for a test 9. An atlas
e. U.S. Government Works

i. 105: U.S. gov't employees are not subject to the employee rule

III.

Acquiring and Maintaining Copyright A) Formalities a. An Overview i. 1976 Act replaced the idea of publication with fixation 1. Got rid of the duality created by unpublished works 2. Retained the notice requirement 3. Deposit required but failure results in fine rather than forfeiture of copyright ii. What is Publication? 1. Estate of Martin Luther King Jr. v. CBS, Inc.
a. FactsAnalyzed under the 1909 Act b/c of the date of speech. King estate

registered Speech for copyright and renewed when necessary. CBS produced a documentary and used 60% of the speech without permission or compensation. CBS argued that because the Speech had such a wide audience it entered the public domain (general publication). b. ConclusionFor King
c. Rulegeneral publication occurs when a work is made available to

members of the general public without regard to their identity or what they intend to do with their work. A performance, no matter how broad, is not a publication. iii. Notice of Copyright 1. No longer a requirement after Berne Convention 2. Abandonment of Copyright a. Pre-1989
i. Lack of copyright notice abandonment or forfeiture of copyright

b. Today i. Lack of copyright notice does not lead to abandonment

ii. Abandonment can only occur as a result of an "intentional relinquishment of a known right" by the copyright owner iv. Deposit Requirements 1. 1976 Act a. Requires owners to deposit 2 complete copies to the copyright office 2. Policy a. Enrich the Library of Congress b. Facilitate development of a comprehensive record of copyright claims v. Registration 1. No Longer a requirement BUT required to commence infringement action
a. 3 months to register and remain eligible for statutory damages and fees in

suit b. Allows owners to seek assistance of Border Patrol to seize infringing items c. Copyright Office may deny registration even after all requirements are met i. Author may still commence action but does not have benefit of the presumptions with registration vi. Restoration of Copyright Protection for Certain Works of Foreign Authors 1. Berne required retroactive protection of foreign works that lost copyright for failure to satisfy formalities imposed by U.S. B) Duration a. The Basics of Duration
i. Works Created On or After January 1, 1978

1. Single Author a. Life + 70 years 2. Joint Authors (not works for hire) a. Life of last surviving author + 70 years 3. Anonymous/pseudonymous or work for hire

a. 120 years from the year of creation, or b. 95 years from the year of publication c. Whichever expires FIRST ii. Works First Published Before January 1, 1978 1. 1909 ActClock runs when publication with proper notice happens a. 28 year initial term b. 28 year renewal (if filed in last year) c. 19 year extension (1976 Act) d. 20 year extension (1998) 2. Works before 1923 are in the public domain
iii. Works Created BUT Unpublished Before January 1, 1978

1. 1976 Act grants federal copyright 2. Life of the author + 70 years expiring NO SOONER than Dec. 31, 2002 iv. On Exam Ask: 1. When was it fixed?
a. After 1978 Fixation Rule 2. Before 1978 Publication w/ notice? a. Published before 1964 and renewed? 95 year total term b. Published after 1964?95 year automatic renewal

v. Two Shortcuts 1. After 1923 and after 1978 AND proper renewal, + 95 years 2. After 1964 and before 1978, + 95 years

b. The Policy Behind Copyright Duration i. Eldred v. Ashcroft 1. FactsEldred had website that posted works that entered the public domain, the CTEA extension would have prevented anything else from entering the public domain for another 20 years 2. ConclusionCourt says its in the discretion of Congress to promote the progress of science, Congress may decide the limits 3. First Amendment Argument a. Copyright is a regulation on speech b. Copyright has built in first amendment protection

ii. Golan v. Holder

1. Facts 514 of URAA restored copyright of foreign works that already entered

the public domain in the U.S. C) Renewals & Termination of Transfers a. Renewals i. 1909 ActAuthor must file a renewal certificate ii. Stewart v. Abend
1. FactsThe author of a preexisting work assigned the right to use it in a derivative,

but died before the commencement of the renewal period. That work eventually became the movie "Rear Window" 2. RuleA copyright owner's right to permit a derivative work passes to the heirs of the author; they are not bound by the original author's agreement to permit such a use (the renewal contingency) b. Termination of Transfers
i. 203(a) Terminations of Transfers Made on or after January 1, 1978 1. When there is a grant, a 203 termination may apply (not a work for hire)

2. Who may terminate? a. One Author i. May be effected by that author

ii. If dead by the person who owns more than of the termination

interest 1. Widow(er) owns entirety if no children/grandchildren a. If children then half divided among children 2. Surviving children own entirety unless widow(er) a. If widow then one half divided among children 3. If no surviving heirs then estate b. Two Authors

i. May be affected by a majority of the authors who executed it

ii. If any author is dead that author's termination interest may be

exercised by the person(s) who own and re entitled to exercise a total of more than of that author's interest 3. When may termination occur? a. Anytime during a period of 5 years beginning at end of 35 years from the date of execution of the grant, OR i. If grant covers the right of publication, the period begins at the end of 35 years from the date of publication or at then end of 40 years from the date of execution, whichever ends first. 4. How to terminate? a. Advance notice in writing, signed by the number and proportion of owners required i. Can be made 10 years prior to the end of the grant ii. Notice must be given no later than 2 years prior to intended termination date
b. Termination may be effect notwithstanding any agreement to the contrary ii. 304(c & d) Terminations made Before January 1, 1978

1. When a work is in its initial period or renewal period (not a work for hire) 2. Who may terminate? a. Grant executed by person(s) other than the author i. May be effected by the person(s) or survivors of said person(s) b. Grant by one or more authors
i. May be effected, to the extent of a particular author's share in the

ownership of the renewal copyright, by the author who executed it, or ii. If dead, by the person(s) who own and are entitled to exercise a total of more than one half of that author's termination interest. 1. Same as 203

IV.

Protected Works & Boundary Problems

A) 102 Subject Matter of CopyrightWorks of Authorship Include

a. Literary works b. Musical works (including words) c. Dramatic works (including music) d. Pantomimes and choreographic works e. Pictorial, graphic, and sculptural works f. Motion pictures and other A/V works g. Sound recordings h. Architectural works B) Useful Articles w/ Pictorial, Graphic, or Sculptural Aspects
a. 101Pictorial, Graphic, and Sculptural works

b. Useful article doctrine i. Line drawn between works of applied art and industrial design 1. A conceptual separability of artistic and utilitarian elements
2. Shall only be a PGS work if the design incorporates PGS features that can be

identified separately from, and are capable of existing independently of, the utilitarian aspects. ii. Useful Articleone having intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information c. Kitsch or Progress? i. Mazer v. Stein 1. FactsStein crafted a sculpture for a lamp base. Mazer copied the base and sold his own lamps 2. ConclusionThe sculpture is copyrightable; it does not matter if the work is purely aesthetic (stand alone) or for a commercial purpose (lamp base).

3. RuleSubsequent utilization of a work of art in an article of manufacture in no way affects the right of copyright. d. Defining Useful Articles & Determining Separability
i. Kieselstein-Cord v. Accessories by Pearl, Inc.

1. FactsKieselstein makes fancy belt buckles and registered them as jewelry; defendant copied the belt and sold them for less. Defendant argues the belt is utilitarian and cannot be copyrighted
2. ConclusionCourt finds for Kieselstein

3. RuleSeparability can be physical or conceptual. Here, the belts had conceptual separability because wearers used the primarily as an ornament which is separate from their utilitarian function. ii. Carol Barnhart Inc. v. Economy Cover Corp.
1. FactsBarnhart designed human torso figures for displaying clothes. Economy

copied the forms; they argue the aesthetic aspect of the forms were not conceptually separate from the utilitarian purpose 2. ConclusionThe court denied copyright to Barnhart a. The features claimed to be aesthetic (configuration of breasts, width of shoulders, etc.) are inextricably intertwined with the function of displaying clothes
iii. Brandir International, Inc. v. Cascade Pacific Lumber Co. 1. Facts Cascade copied the Ribbon Rack bicycle rack designed by Brandir. The

rack was designed originally as a wire sculpture that he later adapted to be more suited for bikes.
2. ConclusionThe Ribbon Rack is not copyrightable because the design of the rack

was influenced heavily by utilitarian concerns (he adapted the original artwork for the rack) 3. TEST: Object is copyrightable if: a. It is a useful article that incorporates PGS elements, and b. The aesthetic elements are physically or conceptually separable from the utilitarian aspects of the object

i. Brandir: What did the author intend at the time the work was

created? Were design elements made based on aesthetic or functional concerns? (very subjective and easy to manipulate) e. New Paradigms C) Computer Software a. Protected by Congress as a "literary work"
i. 101 Computer Program 1. A set of statements or instructions to be used directly or indirectly in a computer in

order to bring about a certain result b. Text or Machine? i. Apple Computer, Inc. v. Franklin Computer Corp. 1. FactsFranklin created a cheaper computer that could run Apple software and copied the Apple OS and some physical aspects of the computer. He did not copy any applications. Franklin argued the OS could not be copyrighted because it is an idea, process or method of operation. 2. ConclusionThe court finds for Apple saying the OS is copyrightable 3. ReasoningWhat the computer does in response to the code in the OS is the "process" or "method of operation". The code itself is more like an instructional book about an accounting method and therefore subject to copyright c. Distinguishing Idea From Expression in Software i. Source and object code for OS and applications are copyrightable but is the structure of a program copyrightable?
1. A programmer could copy the structure but write it in completely different code

a. Literal copying vs. Non-literal copying ii. Computer Associates International, Inc. v. Altai, Inc. 1. FactsAn employee of Computer Associates went to Altai and brought a copy of code with him. Altai developed the same program but after a lawsuit developed a different code to do the exact same thing.
2. ConclusionThe court used the AFC test and found the copyrightable elements in

CA's program were not substantially similar to those elements in Altai

3. TestAbstraction-Filtration-Comparison a. Abstraction: i. Break up the program into different levels from general to specific main purpose and function not copyrightable b. Filtration: i. Decide what components are not essential to fulfilling the abstract function of the program 1. Also filter out anything that is dictated by efficiency, external factors, or in the public domain c. Comparison: i. Look at the remaining components that are not essential to fulfilling the abstract function to see if they are similar d. Moffat doesn't like this because the point of the AFC test is to pull out what is NOT protectable and what left IS protectable d. New Paradigms? D) Architectural Works (p. 246 257 skimmed) a. Architecture is whatever Congress says it is. It changes and the boundaries are odd compared to other worls. E) Characters
a. Characters do not fall neatly within the 102(a) categories, they are elements of various works

b. Expression or Idea? i. Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co.

1. FactsHonda produced a commercial that was thematically similar to James

Bond, MGM sued. Honda argues Bond is not protectable and that their character is merely the representation of an idea of a spy. Is the character protectable and did the defendant copy enough of the protectable elements to amount to infringement? 2. ConclusionCourt finds for MGM saying James Bond is copyrightable
3. Story Being Told Test:

a. Protectable if the character is the story being told.

i. If a character is merely a chessman in the game of telling the story then there is no protection
4. Character Delineation Test: A character is sufficiently delineated when it is

sufficiently original in expressionthe more delineated a character is, the more he embodies protectable expression and less a general idea a. Was the character created with enough delineation to afford copyright protection? b. Did the allege copier copy that character's physical, mental, or emotional traits, or did he create a character based on a broader, more abstract outline? ii. Titan Sports, Inc. v. Turner Broadcasting Systems, Inc. F) Databases a. Definition i. A compilation 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 b. Facts are not copyrighted, merely the arrangement c. Selection, Arrangement, & Utility
i. Bellsouth Advertising & Publications Corp. v. Donnelly Information Pub.

1. FactsDonnelly began publishing yellow pages to compete with Bellsouth. Bellsouth claims Donnelly copied its unique headings 2. Conclusion- Donnelly did not copy any protectable elements, a. The headings and structure Donnelly chose were dictated somewhat by functional concerns and industry practice b. names, addresses, phone numbers, business types, advertisements, are not original elements of "selection, coordination, or arrangement" ii. CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc. 1. FactsMaclean published the Redbook that provided car valuations throughout the ear for different regions of the U.S. These were not based on historical prices, quotes, averages, formulas or available statistics; rather they represented experts'

projections. CCC copied a large portion of this information into its computer database 2. ConclusionCourt held that the Redbook's information was sufficiently original to merit protection and that a. The information in the Redbook constitutes more than a mere compilation of facts b. The compilation constitutes an original work of authorship

V.

The Statutory Rights of Copyright Owners

A) 106 Copyright Owner's Exclusive Rights

a. To reproduce the copyrighted work in copies or phonorecords b. To prepare derivative works c. To distribute copies by sale or other transfer of ownership d. To perform the copyrighted work publicly e. To display the copyrighted work publicly, and f. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission B) The Elements of Infringement a. Prima Facie Case of Infringement i. Plaintiff must prove ownership of valid copyright
1. Plaintiff must prove that the defendant violated one of the exclusive rights

provided by 106

b. Copying in Fact i. Plaintiff must prove copying in fact by direct or circumstantial evidence 1. Defendant had access to the plaintiff's work 2. The degree of similarity between the two works (striking or substantial)

ii. Three Boys Music Corp. v. Michael Bolton

1. FactsThe Isly Brothers recorded a song; many years later Bolton recorded a

similar sounding song. Bolton argued he couldn't remember ever hearing the song to copy it. 2. ConclusionCourt found or Isly brothers 3. Test for Infringement a. Access i. A particular chain of events established between the plaintiff's work and the defendant's access, or ii. The plaintiff's work is so widely disseminated that the defendant could not have avoided it b. Substantial Similarity 4. Subconscious infringement is not a defense iii. Selle v. Gibb 1. FactsSelle was a lesser-known musician who wrote and sent demo tapes to various labels but never got picked up. Later, the Bee Gees recorded a similar song. Bee Gees argue they never heard Selle's song and that it was an independent creation 2. ConclusionCourt finds for Bee Gees a. The song was similar but there was insufficient evidence showing the Bee Gees ever had access to Selle's song 3. RuleWhere the works are so strikingly similar as to make it highly probably that the later work was a copy of the earlier one, the issue of access need not be addressedthe later author must have had access to the original iv. Ty, Inc. v. GMA Accessories, Inc.
1. FactsTy made Beanie Babies and GMA made similar looking stuffed pigs.

GMA argued there was no infringement because they independently created their pig design. 2. ConclusionCourt finds for Ty

a. Compared the stuffed pigs and real pigs and found the stuffed ones were strikingly similar to each other but not similar to real pigs (hard to imagine the features of the GMA pig coming from the real pig) 3. RuleAccess and copying may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation. C) The Reproduction Right a. The Substantially Similar Copy i. Classic Cases 1. Nichols v. Universal Pictures Corp. a. FactsNichols wrote a play about a Jewish family in NYC; Universal later made a movie with a similar plot b. ConclusionCourt finds for Universal c. RuleA second work may be a copy of another work even if it does not copy the literal text, but the two works need to be substantially similar 2. Arnstein v. Porter a. FactsArnstein, a songwriter, claims Porter copied his songs and even broke into his apartment. Porter claim independent creation b. ConclusionCourt for Arnstein c. RuleAccess and Substantial Similarity i. Substantial similarity is for a jury to decide
ii. One Contemporary Approach: The Second Circuit

1. Steinberg v. Columbia Pictures Industries, Inc. a. FactsSteinberg authored an illustration of the NYC skyline from the Hudson river for the New Yorker, Columbia used a similar illustration for a movie poster b. ConclusionTrial court found for Steinberg

c. Ordinary Observer Test

i. Whether an average lay observer would recognize the alleged

copy as having been appropriated from the copyrighted work?

2. Boisson v. Banian, Ltd.

a. FactsBoisson created two alphabet quilts and defendant imported alphabet themed quilts b. ConclusionCourt finds for Boisson c. Total Concept and Feel Test i. Where the 'ordinary observer' test needs more refinement (when it incorporates public domain elements that must be separated) the fact finder should be guided by the 'total concept and feel'
3. Mannion v. Coors Brewing Co.

a. FactsSee Above b. ConclusionSee Above c. RuleThe Idea/Expression Difficulty i. The argument that this is the only way to depict the idea of a 'young black man, etc' is ridiculous iii. Another Contemporary Approach: The Ninth Circuit
1. Sid & Marty Krofft Television Productions, Inc. v. McDonalds Co.

a. FactsKrofft created a fantasy children's television show and McDonalds ran adds with creatures and landscape similar to Krofft. McDonalds admits to using the idea bit says the expression is not similar enough to be infringement b. ConclusionCourt finds for Krofft. Intrinsically similar, invoked the same "concept and feel" c. Extrinsic/Intrinsic Test i. Extrinsic

1. Looks at specific criteria that can be listed and analyzed (type of artwork, material and techniques used, subject matter) ii. Intrinsic Test 1. Considers the impressions of the average reasonable viewer/spectator 2. Cavalier v. Random House, Inc. a. FactsCavalier submitted children's stories about an anthropomorphic moon to Random but was rejected. Later Random and CTW created a work about an anthropomorphic moon
b. ConclusionCourt for Random House

c. RuleExtrinsic/Intrinsic Test 3. Swirsky v. Carey a. FactsSwirsky wrote a song that didn't take off, later Carey write a similar song that became very popular. Swirsky admits it is not very similar as a whole but the chorus is substantially similar
b. ConclusionCourt for Swirsky

c. Extrinsic/Intrinsic Test i. Extrinsic: whether the two works share a similarity of ideas and expression measured by external, objective criteria ii. Intrinsic: A subjective comparison that focuses on whether a reasonable audience would find the total concept and feel to be similar
iv. The 10th Circuit: APPLY THIS

1. Gates Rubber, Co. v. Bando a. FactsGates developed software that calculated variables to determine what kind of belt was needed for various machinery. Bando hired a Gates employee to develop a similar program
b. ConclusionRemanded

c. TestMust show copying of protectable elements AND that those elements are a sufficiently important (more than a de minimis element) to the work when considered as a whole i. Abstraction-Filtration-Comparison 2. Full 10th Circuit Test a. Valid copyright? b. Copying in fact? i. Access, AND ii. Substantial Similarity c. Copied elements are protected and sufficiently important i. Abstraction-filtration-comparison
D) The Distribution Right a. 106(3) gives copyright owners the exclusive right to "distribute" copies

b. What is a Distribution? i. Capitol Records, Inc. v. Thomas ii. FactsThomas had 1,700+ infringing music files on her computer that Kazaa uploaded from her shared directory. Plaintiff was unable to prove where she got the files so they argued that by "making available" the infringing files infringed the right to distribute iii. Rule"Making available" is not distribution because a strict statutory reading of 106(3) does not include this term that is found in other sections of the statute c. The First Sale Doctrine
i. 109 The First Sale DoctrineRights in tangible property allows one to dispose of

that property (i.e. sell), so long as it was lawfully made, without violating the original copyright owner's right to distribute (copyright owner has the right to the 'first sale') 1. An exception to the distribution right ii. Bobbs-Merrill Company v. Straus 1. FactsCopyright owner had a notice in the book that required it to be sold for $1, the owner found the book being sold for $.89

2. ConclusionCourt finds against the owner 3. RuleFirst Sale Doctrine d. Unauthorized Importation & The First Sale Doctrine
i. 602(a) Infringing Importation or Exportation 1. Importationimportation into the US w/o the authority of the copyright owner

of copies or phonorecords of a work that have been acquired abroad is an infringement to the exclusive right to distribute 2. Inportation/exportation of infringing items ii. Quality King Distributors, Inc. v. Lanza Research International, Inc. 1. FactsL'anza has a copyright on its shampoo label. The shampoo is sold for less abroad. Quality bought the shampoo abroad and resold it in the US. L'anza argues this violates its distribution right
2. ConclusionCourt finds for Quality King 3. RuleFirst sale applies because it is a "round trip product", it was sold first

from the US and resold in the US, only applies to lawfully made products e. First Sale Doctrine Cont. (non-textbook readings) i. Vernor v. Autodesk
1. FactsAutodesk transfers copies of AutoCAD to CTA for $3,700, CTA

installs it and uses it thn upgrade for $495. CTA transfers to copies to an office sale. Vernor buys the copies and sells then on eBay. 2. ConclusionCourt finds for Autodesk 3. RuleThe first sale doctrine only applies as a defense to the owner. Computer software licenses do not grant ownership. Licensees cannot sell the software as "owners" 4. Three Factor Test for Licensee/Sale Distinction a. A software user is a licensee rather than an owner of a copy where the copyright owner i. Was there a license? (added by UMG) ii. Specifies that the user is granted a license,

iii. Significantly restricts the user's ability to transfer the software, and iv. Imposes notable use restrictions
ii. UMG Recordings, Inc. v. Augusto

1. FactsAugusto sold used copies of UMG's promotional CDs on eBay that were sent out to music industry insiders and DJs. Augusto brought counterclaim alleging violation of Digital Millennium Copyright Act (DMCA) 2. ConclusionCourt fins for Augusto a. The copyright owner did not create a license but conveyed title to the recipients of the CDs iii. UMG/Vernor Distinction 1. The software license was an agreement that the use had to accept E) The Right to Prepare Derivative Works
a. 103 Derivative Works i. Derivative works meeting the 102 standards are independently copyrightable. It is

the owner's exclusive right to prepare or authorize the creation of derivative works ii. Preparation of a derivative work is infringement even though nothing is ever fixed in tangible form b. Defining Derivative i. Based upon one or more preexisting works 1. i.e. Translation, musical arrangement, fictionalization, motion picture version, sound recording, art reproduction, abridgement, or any other form in which a work may be recast, transformed, or adapted. Any work consisting of editorial revisions, annotations, elaborations, or other modifications which represent original authorship ii. Paul Goldstein discussion 1. Derivative rights affect the level of investment
a. Enable the owner to proportion the investment to the level of expected

return from all markets, not just the original market

iii. Castle Rock Entertainment v. Carol Publishing Group

1. FactsCarol published a Seinfeld trivia book that used plots and characters

form the show. 2. ConclusionCourt found for Castle Rock 3. Qualitative/Quantitative Test a. Qualitative: The amount of expression copied i. The SAT is based directly on the original, protectable expression (original characters and storiesO b. Quantitative: Copying of the expression (more than de minimus) i. Used fragments of the show iv. Warner Bros. Entertainment v. RDR Books 1. FactsDefendants created an online searchable encyclopedia of the HP universe and tried to publish into a book. Contained a large amount of direct quotations and close paraphrasing
2. ConclusionCourt finds Lexicon infringed the reproduction right but not the

derivative right (not a derivative) 3. Quantitative/Qualitative Test a. Quantitative i. A large amount of direct quotation from HP was used in the Lexicon ii. Consider not only the direct quotes and paraphrasing but ALL protectable expression b. Qualitaitve i. Defendants draw content from plaintiff's creative, original expression 4. Derivative Work
a. A work is not a derivative simply because it is "based upon" a

preexisting work

i. The Act protects works that are "recast, etc." that represent the

original work 1. Lexicon no longer represents the originalNOT a derivative c. Modes of Transformation i. The line between a copy of a protected work a non-infringing transformation turns of the degree to which the underlying work has been transormed ii. Recasting and Originality 1. Mirage Editions, Inc. v. Albuquerque A.R.T. Co. a. FactsART purchases prints and books and glues them to tiles, applies a film and sells them. ART claims these are not derivative works b. ConclusionCourt finds ART's work a derivative c. RuleAn original work that has been recast or transformed is a derivative 2. Lee v. A.R.T. Co.
a. FactsART does the same thing as in Mirage.

b. ConclusionCourt finds the works are NOT derivatives

c. RuleThis behavior amounts to nothing more than mounting or

framing. The change as a whole is not sufficiently original to support it's own copyright. It is no different in form or function. No recasting, adaptation, or transformation. F) Copyright & The Music Industry a. 2 Copyrights in Music
i. 102(a)(2) The musical work (i.e. notes and lyrics) ii. 102(a)(7) The sound recording

b. Reproduction, Public Distribution, & Derivative Work Issues

i. Musical Works & 115Composition

1. Gives copyright owners the right to control mechanical reproduction of their

works
2. Compulsory Licenses (covers) a. Others may use the composition without the owner's consent if they

pay the statutory royalty i. Must be previously distributed to the public, embodied in a phonorecord, and created under the authority of the owner ii. Allows for reproduction and rearrangement, but DOES NOT grant derivative rights iii. DOES NOT authorize the reproduction of the sound recording, ONLY the musical work
3. 106(4) protects the right of public performance (no such protection for sound

recordings)
ii. Sound Recordings & 114

1. Protect the reproduction right, but does not protect against imitationsprimary concern was piracy iii. Sampling Musical Works & Sound Recordings
1. Newton v. Diamond a. FactsBeastie Boys purchased license of sound recording (owned by

ECM) but not the musical work (owned by Newton). Their use of the 3 notes of the song (looped 40 times) invoked both of these copyrights b. ConclusionThe court finds for the Beastie Boys because their use was de minimus c. RuleUse is de minimus if the average audience would not recognize the appropriation. i. Because the Beastie Boys had the license to use the sound recording, infringement rested on the use of the underlying musical notesthe notes themselves had to be recognizable (Newton's unique playing style and variations would have to have been annotated to be protected) 2. Bridgeport Music v. Dimension Films

a. FactsDimension sampled a portion of a protected song for use in a movie. Dimension had a license for the musical composition but not the recording, they admitted to sampling. b. ConclusionCourt found for Bridgeport c. RuleWhere the defendant admits to digital sampling the de minimus use defense does not apply iv. The Audio Home Recording Act 1. Addresses audio tape recordings c. Public Performance i. Musical Works, ASCAP, & BMI
1. 106 grants owners of musical works (but not sound recordings) the right to

public performance 2. ASCAP is an asshole

ii. 110 Limitations Revisited

1. Fairness in Music Licensing Act a. Applies to small businesses playing music form the radio or television (licensed radio stations)
iii. Sound Recordings & Public Performance by Means of a Digital Audio Transmission 1. 106(6) gives a limited performance right to owners of sound recordings. The

right is limited to controlling the performance of Digital Audio Transmissions (DAT) (radio is analog) a. Right is limited to exclusive performances of DATs through paid subscriptions of interactive services 2. Arista Records, LLC v. Launch Media, Inc.
a. FactsLaunch operates a webcast service very similar to Pandora.

Arista argues this is an interactive service that violates its copyright in sound recordings b. ConclusionCourt finds for Launch

c. RuleLaunch does not provide sufficient control to users such that playlists are so predictable that users will choose to listen to the webcast in lieu of purchasing music d. Interactive TestIs inter active if: i. The user can either request and play a particular sound recording, OR ii. Receive a transmission of a program specially created for the user 1. Think of "predictability"

VI.

The Different Faces of Infringement A) Why sue Secondary Infringers? a. Money b. Efficacy c. Efficiency d. Shift burden of enforcement B) Direct Infringement a. Religious Technology Center v. Netcom On-Line Communication Services i. FactsErlich, a former Scientologist posted Scientology documents on an Internet bulletin board. Scientologists sent notice to E and also to the website and ISP (no one did anything).
ii. ConclusionCourt denied summary judgment for Netcom

iii. Contributory copyright infringementwhere one who, with the knowledge of infringing activities, indices, causes, or materially contributes to the infringing conduct
iv. Vicarious copyright infringementoccurs where a defendant has the ability to control

an infringer's acts and receives a direct financial benefit from it (Netcom did not financially benefit and could not control) b. This case is pre-Safe Harbor Act C) Vicarious Liability & Contributory Infringement

a. Fonovisa, Inc. v. Cherry Auction, Inc.

i. FactsCherry operated a swap meet that required a purchased admission ticket. One of

the vendors was found to be selling bootlegged records. Fonovisa sued Cherry for vicarious liability ii. ConclusionCourt reversed summary judgment for Cherry and remanded iii. Vicarious Liability 1. Cherry could kick vendors out and received money from ticket sales (some from people wanting to purchase bootlegged CDs) iv. Contributory Infringement 1. Cherry knew about the bootlegs and advertised the swap meet thus enabling people to purchase the infringing items b. Perfect 10, Inc. v. Amazon.com, Inc.
i. FactsAmazon and Google's image search displayed thumbnails of images belonging

to Perfect 10 with hyperlinks to infringing websites hosting the image. It also shows a frame with the image and information. Perfect 10 argues the linking constitutes contributory copyright infringement ii. ConclusionThe thumbnails are not infringing, providing hyperlinks is not infringing iii. RuleHyperlinks not infringing; the infringing websites existed before Google linked to them and would exist afterGoogle had no control over their existence. The thumbnail is not infringing because it is not hosted on a Google server and it is transformative (fair use) and emrely provides an easier way to access information c. Perfect 10, Inc. v. Visa International Service Association i. FactsPerfect 10 sued credit card companies that processed payments to other magazines and websites that stole their copyrighted images or misrepresented themselves as if they were affiliated with Perfect 10 (this is a trademarked term) ii. Conclusion iii. Rule 1. Contributory Infringement a. Knowledge of 3rd party's conduct, AND b. Induces or materially contributes

i. Materially contribute: must have a way to reproduce, alter, or distribute the content. c. Vicarious Infringement i. Right and ability to control, AND 1. Blocking payment does not block the internet and thus the infringing activity ii. Direct financial benefit D) Device Manufacturing & Liability for Inducing Infringement a. Sony Corp. of America v. Universal City Studios, Inc. i. FactsSony invented the VCR that allowed people to record TV, Universal sued for contributory infringement. ii. ConclusionSCOTUS found for Sony iii. RuleStaple Article of Commerce
1. No contributory infringement if the article is capable of significant non-

infringing use a. Use for "time shifting" (watching a program later) is a non-commercial fair use b. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. i. FactsGrokster is a P2P file sharing service. ii. ConclusionGrokster is liable for inducing infringement E) Online Service Provider Liability
a. 512(c) Safe Harbor i. Provides immunity from infringement liability if OSP engages in these activities 1. Transitory digital network communications

2. System caching 3. Storing information on its servers at the direction of its users, or 4. Providing information location tools like hypertext links

ii. How to avoid liability 1. Transmission initiated by someone else OTHER THAN OSP by an automated process 2. OSP must not select the recipient EXCEPT through an automated process 3. OSP must not maintain a copy accessible to anyone except the recipients 4. OSP must transmit content without modifications iii. Most Important Safe Harbor 1. Exempts an OSP from liability for infringing material hosted on its servers on behalf of subscribers and for infringing material "hosted" on its servers and maintained for limited periods if a. OSP must designate an agent to receive notification of claimed copyright infringement from owners, b. Make policy and procedure publically available on website, c. File that information with the copyright office,
d. Upon notice of an infringement claim, take down, expeditiously, the

infringing material and notify the user i. Notice must include 1. Identification of copyrighted work 2. Identification of infringing material 3. Reasonable contact information of infringer 4. Electronic or physical signature ii. User can file a counter notice which must be sent to the complainer e. Designate policy for repeat offenders f. Must not receive financial benefit directly attributable to the infringing behavior g. And the OSP must not have actual knowledge of the infringing behavior b. Viacom v. YouTube

i. FactsViacom alleges YouTube infringes its copyright by allowing users to upload

and view copyrighted content ii. Conclusion iii. RuleWillful blindness can imply knowledge or awareness. The general right and ability to control is not enough to preclude an OSP from Safe Harbor protection VI. Fair Use: Another Limitation on Copyright A) Fair Use in Comparative Perspective
a. 107 Fair Use: 4 Elements

i. Purpose and character of the use 1. Commercial/Non-Commercial a. Commercial use does not mean presumptively unfair 2. Transformative 3. Parody 4. Good faith ii. Nature of the copyrighted work iii. Amount and substantiality of the portion used in relation to the whole iv. Effect on the market of the copyrighted work B) The Different Faces of Fair Use a. Cultural Interchange i. Harper & Row Publishers, Inc. v. Nation Enters.
1. FactsHarper sold the exclusive right to print an excerpt of Ford's book to Time

but somehow a 3rd party got a hold of the excerpt and printed it first "scooping" Time who cancelled the deal. 2. ConclusionSCOTUS found for Harper & Row 3. 4 Factor Test a. Purpose and character of the use i. Navansky argued it was "news" and thus a fair use

ii. Court disagreesonly purpose to "scoop" Time and get commercial gain b. Nature of copyrighted work i. There is generally a greater need to disseminate factual information over fiction (less protected) but because Ford's book was unpublished, he possessed greater protection ii. The author has the right of "First Publication" c. Amount of the original work used i. Amount stolen was substantial enough 1. Can't defend plagiarism by pointing to what was NOT stolen d. Effect on the potential market i. Actual evidence of harm due to Time's cancellation of the contract with Harper
ii. Campbell v. Acuff-Rose Music, Inc.

1. Facts2 Live Crew made a version of Pretty Woman (not a cover b/c changed too much). Orbison sued 2. ConclusionCourt finds 2 Live Crew's version is a parody and a fair use 3. 4 Factor Test a. Purpose and character i. Commercial but also parody b. Nature of copyrighted work i. Doesn't apply to parodies since the artistic value is in the ability to copy the work c. Amount and substantiality i. They used the "heart" of the work, but that is required in parody ii. Used mostly new lyrics, so can't say that more was taken than necessary

d. Effect on the market i. In general, parodies do not harm marketability of the original since they serve different functions iii. Nuez v. Caribbean International News Corp. 1. FactsNuez took nude photos of Miss Puerto Rico that a newspaper published after the photos created a controversy. The newspaper argued fair use because they were reporting the news.
2. ConclusionCourt finds for newspaper

3. 4 Factor Test a. Purpose and character i. The photos are newsworthy, but the paper was using them mostly to titillate readers b. Nature of copyrighted work i. The photos were already published, there was no registered copyright and no control over dissemination c. Amount of work used i. Used the whole photo, but could not have reasonably used less d. Effect on the market i. Likely purchasers of the photo unlikely to be dissuaded by the grainy, poorly reproduced images in the paper iv. Bill Graham Archives v. Dorling Kindersley 1. FactsGrateful Dead photos were used in collaboration for a book archiving the cultural history of the Grateful Dead 2. ConclusionCourt finds fair use 3. 4 Factor Test a. Purpose and Character
i. Transformativeuse for a biography whereas the original use was

for promotion

b. Nature of copyrighted work i. Not as helpful when the use is transformative c. Amount and substantiality i. Images were smaller and put together with other images and text 1. Visual impact severely limited VII. Copyright and Contract A) Modes of Transfer a. The Revision Privilege for Collective Works i. Collective works 1. Separate copyrights a. Copyright for the collective work as a whole b. Copyright for the individual articles (vests in the author) ii. New York Times v. Tasini 1. FactsNYT licensed back issues for inclusion in online databases. Freelance authors sued. 2. ConclusionCourt finds for authors 3. RulePublishers of collective works may license the work as a whole, but do not have a right to license individual articles written by freelance writers out of context of the collective work B) New Uses, Old Language a. Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. i. FactsBoosey licensed Stravinsky's Rite of Spring for "use in a motion picture" i.e. Fantasia in 1939. In 1991, Disney released Fantasia on video, Boosey sued saying this use was not part of the agreement ii. ConclusionDisney did not breach the contract and this was an acceptable use under the contract iii. RuleAt the time of the contract, "video format" was not unknown and thus was a foreseeable channel of distribution at the time.

b. Random House, Inc. v. Rosetta Books, LLC

i. FactsRandom House granted license to "publish in book form" Rosetta published digital

versions of Random House books. Random House sues claiming there was no license to publish e-books
ii. ConclusionCourt finds for Random House iii. RuleLanguage implies a limited grant. The intention was to be narrow and prohibits e-

books, motion pictures, etc. VIII. Remedies A) Injunctions a. 4 factor test i. Irreparable injury ii. No adequate remedy at law iii. Balancing of hardships iv. Public Interest B) Discretionary remedy a. Never absolute C) Impoundment/Destruction D) Damages (actual or statutory) E) Attorney's Fees