Formalities, Fixation, IdeaExpression, Merger
Intro to IP – Prof Merges
2.9.10
Fixation
• “It makes no difference what the form,
manner, or medium of fixation may be . . .
Sculptural, punched, magnetic, or any other
stable form . . . whether it is capable of
perception directly or by means of any
machine or device . . .”
Live Broadcasts
• Originality
– Photography, video
– “Authorship” of real-life images
• Fixation
White-Smith v. Apollo (1908)
“They are not intended
to be read as an
ordinary piece of sheet
music …. [W]e cannot
think that they are
copies within the
meaning of the
copyright act.” – 209
US at 18.
Fixation issues
• Simultaneous recording and broadcast
• “Authorized” fixation only . . . (bootleg recording
cases)
• State law (preemption) – Hemingway case, p.
405
• Original work and copy must merge through
fixation  copyrightable subject matter
“Copies” and “phonorecords”
• Physical objects
• In which copyrighted works are embodied
– The work starts with a physical instantiation; but is
conceptually distinct from the instantiation
– Property is not tied to/limited to the physical object
Transitory duration
Cartoon Network LP, LLLP v. CSC Holdings,
Inc., 536 F.3d 121, 127-30 (2d Cir. 2008):
data that resides in a buffer for no more
than 1.2 seconds before being
automatically overwritten is merely of
transitory duration and hence does not
constitute a ‘‘copy’’ for copyright
purposes.
Formalities
• Notice
• Publication
• Registration
• Deposit
Three primary eras
• 1909 Act
• 1976 Act (effective Jan. 1, 1978)
• 1989 Berne Implementation Act (effective
March 1, 1989)
What is the “Berne Convention”?
Victor Hugo
Continental tradition
• Droit d’auteur – vs. “copyright” (AngloAmerican tradition)
• Declaration of the Rights of Man (1791);
moral rights
World Intellectual Property
Organization: WIPO
Notice
• Historically: required
• Today (post-Berne Act, March 1, 1989):
Encouraged (see section 401(d))
Publication
• No longer quite as important as
under 1909 and pre-1989 1976
Act
Deposit
• Still required for US works
Formalities: Publication and Notice
1/1/78: Relevant to works created
and “published” in the U.S. before
1978
Distinguish general publication
from limited publication
Divesting v. Investing Publication
• Publication cut off state (common law)
protection; publication without notice
forfeited federal rights.
• Therefore courts were loath to find
“divesting” publication
• Not so when notice given;
“investing”publication
Formalities: Publication and
Notice
If general publication occurred, ask: Was
there strict compliance with 1909 Act
notice rules? If no, the work is in the public
domain.
If limited publication (or no publication)
occurred, ask: Was the work registered
anyway (for certain kinds of works)? If it
was, still copyrighted.
For works fixed after 1/1/78, or fixed before
1/1/78 but not published or registered before
1/1/78, ask:
Was the work disclosed to the public before
3/1/89?
If no, copyright applies
If yes, ask: Was notice included? If no,
copyright applies if limited publication
occurred; work is in the public domain if
general publication without notice occurred.
Estate of Martin Luther King, Jr. v. CBS
(11th Cir. 1999)
Careful attention to the work
• Rev. King case:
• Spoken words? Audio
recording? Video recording?
Text of speech?
Categories of Works
• Literary Works –Has nothing to do with
literary merit (if novel is good or bad)
• © Protects: Plot, Structure & Organization –
• Computer Software included under literary
works
Musical Works – Two Forms:
• (1) Sheet music, lyrics, musical compilation
• (2) Sound Recording/ Musical Composition:
of the
composition
Dramatic Works –
Plays, pantomimes & choreographed work (the
score is copyrightable)
Pictorial, graphic, sculpture
Audio Visual Works and Motion
Pictures
(Soundtrack is included in Motion
Picture)
Architectural Works -Eg, Rock & Roll Museum in Cleveland.
a.
b.
Limited rights: reproduction as a building
Can have copyright for architectural
elements
Recordings could be published …
• And not the written speech
• Result: Preserves copyright
– > Copyright not divested under 1909 Act
Formalities: Notice
For works fixed after 3/1/89, notice
no longer required; publication
status irrelevant to existence of
copyright protection.
Notice still brings benefits
(eliminates “innocent infringer”
defense w/regard to damages) §
405(b)
Acquiring, Keeping and Transferring Copyright
Formalities: Registration
Pre-1/1/78, registration was optional
for initial copyright protection, but
required as a condition of filing an
infringement suit, and for renewal
Post-1/1/78, registration is optional, but
U.S. works must be registered as a
condition of suit, under § 411
Formalities: Registration
Post-1/1/78, benefits of
registration: Evidentiary
benefits (registration
must be w/in 5 years of
first publication) § 410
Registration (cont’d)
Expanded remedial options-statutory damages and
attorneys’ fees (registration
effected prior to infringement
commencing or within 3
months of publication, for
newly published works) §
Formalities: Deposit
Two copies of published works (§ 407)
One copy of unpublished works
Special rules for certain kinds of works
(nb. computer programs) 37 CFR §
202.20
Formalities: Restoration
Applies to Berne and WTO members. § 104A
Relevant to lost U.S. copyright protection lost due to
failure to comply with U.S. formalities.
Work must still be subject to protection in its country of
origin
If notice rules complied with, then restored protection
applies (for most countries) as of 1/1/96
Provisions for “reliance” parties
Morrissey v. P&G
• What was copyrighted?
Morrissey
• What would be the effect of upholding the
copyright?
Merger doctrine
• Why worry about merger if there is
independent creation defense?