Copyright Law
Llew Gibbons
Suite 2104A
419-530-4175
Lgibbon2@pop2.utoledo.edu
January 11, 2000 Tuesday (pp. 1-37)
I.
The Concept of Copyright
A) Historical Perspective (p. 1)
1) England and the Statute of Anne (p. 1): Before this Statute
copyright vested in the publisher and after the author had the
copyright
a) Gave exclusive rights to work for 14 years
b) If Author is alive can extend for another 14 years
c) Deposit 9 copies distributed to official libraries
d) Fine is that infringing works could be confiscated
2) The Colonies and the Constitution (p. 3)
a) Uniformity of law v. copyright in each state
b) Similar requirements as to the Statute of Anne
c) Copyright Clause of the Constitution: Gives Congress the right
to promote artists and authors by granting copyrights and
patents. (Promote the arts and sciences by giving limited
copyrights
3) The First United States Copyright Statute (p. 4)
a) Wheaton v. Peters: Posed the question as to whether common
law copyright existed in the U.S. and if it did whether and to
what extent the enactment of the federal Copyright Act
abrogated copyright. NO FEDERAL OF STATE COMMON LAW
ALL COPYRIGHT LAW IS STATUTORY.
b) THERE IS STATE COPYRIGHT LAW, BUT IT IS LIMITED
c) First act limited to maps, charts and books.
4) Statutory Revision (p. 6)
a) Prints were added
b) Right to public performance
c) Photograghs
d) Paintings
5) The 1909 Act (p. 6)
a) Published works
b) Copyright maximum protection is 56 years
6) The 1976 Act (p. 6)
a) Anything is copyrightable, no formalities
b) Got rid of state copyright laws
c) Any copyright to original works. Must have some modicum of
originality by or under the authority of the author.
d) Copyright is life +50 and can terminate a transfer of copyright
after 35 years.
e) Notice: Copyright 1999 Dave McDonagh
f) Exceptions are academic not for profit uses.
7) International Copyright Protection and Its Impact on U.S. Copyright
Legislation (p 9)
a) Berne Convention gives worldwide rights to Berne Convention
countries.
8) Subsequent Amendments to the 1976 Copyright Act (p. 11)
B) General Principles (p. 12)
1) Currently a copyright is life +70
2) Utilitarian approach is that you are entitled to enough copyright to
get you to continue to produce more work.
3) This violates utilitarian approach and took things out of the public
domain.
a) The idea is that congress bends its own rules so that companies
can continue to make money on long tern assets.
4) Copyright only limits the expression not on the underlying idea.
5) Renewal rights
a) First 35 years go to whoever you give it to
b) Then goes to heirs
(1) To get around this give it to a corporation that you own
(a) This is life +95 years
January 13, 2000 Thursday (pp. 37-75)
Are we getting useful arts because of copyright act as it intended?
The philosophy is that collectively we are promoting the useful arts and
sciences?
Courts presume what is created is useful by what the market determines.
NO MONOPOLY
1) Source of origin is unique
2) Patronage
Burrow-Giles Lithographic Co. v. Sarony (p. 29)
The argument is that the photograph is a reproduction on paper of the exact
features of some natural object or of some person, is not a writing which the
producer is the author.
The court found that this is a copyrighted work because the original photographer
mad the same…entirely from his own original mental conception, to which he
gave visible form by posing Oscar Wilde in front of the camera.
§101: Fixed: A work is “fixed” in an tangible medium of expression when it
embodiment in a cop or phonorecord, by or under the authority of the author, is
sufficiently permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration. A work
consisting of sounds, images, or both, that are being transmitted, is “fixed” for
purposes of this title if a fixation of the work is being made simultaneously.
Created: Copyright is created when it is fixed for the first time.
§102(a): Copyright exists in any original work of authorship fixed in a tangible
medium 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.
§106 Copyright Acts gives exclusive rights
.
Bleistein v. Donaldson Lithographic Co. (p. 33)
C) Overview of Copyright Law (p. 37)
Thursday January 20, 2000 Class (pp. 75Copyright does not cover
§102 (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, or embodied in such work.
Feist Publication Inc. v. Rural Telephone Service (p. 75)
Magic Marketing v. Mailing Services of Pittsburgh (p. 76):
Originality is distinct from novelty. To be original, a work must be the product of
independent creation. The test for originality is a “low threshold” the “author”
must contribute more than a trivial variation of a previous work (the work must be
recognizably “his own.”
§114 of Copyright Act: No copyright of government works.
Sebastian International Inc. v. Consumer Contacts (PTY) Ltd. (p. 79)
Fixed: covered by the Copyright Act. Fixed median of expression = statutory
protection. Not Fixed = Common Law
Fixation in Digital Media (p. 85)
 RAM is a fixation
 Intermediate copy for Internet violation?
 Look at §117: Allows to make a copy of a program to use it. This gives the
authority to make archival and backup copies of software. It also allows you
to repair computer and to lease copies.
Resolve our PacMan problem? Does playing PacMan make you an author?



Software program is copyrighted (sufficient originality)
Display fixed elements are copyrighted
The player is not an author to the game played because his actions are
transitory and not original. There are a finite number of things you can do.
Trade Related Aspects of Intellectual Property (TRIPs) (p. 89)
17 USC §1101(a): This grants to performers of live musical performances rights
against unauthorized fixation of their performances; the reproduction of the
unauthorized fixation in copies or phono-records.
The power to make this law is the Commerce Clause
Tuesday January 25, 2000 Class (pp. 118-132)
Expression Merger:
Review: Subject matter of Copyright §102
Review: Why are definitions important
- §102 & §101 (fixed)
- §1101(a) musical works
Idea / Expression Dichotomy
§102(b): In no case does copyright…embodied in such work.
What is patentable v. copyrightable.
Patentable:
Copyrightable:
Baker v. Selden (p. 91): This case was whether a standard accounting method
was copyrightable. The court found it could have been patented, but the only
thing that could be copyrighted was the way the idea was described in the
original book by the original authorship. The lesson here is that a blank form is
not generally copyrightable. There has to be more (e.g. an explanation of the
form must be accompanied with the form.)
Morrissey v. Procter & Gamble Co. (p. 96): The rules to a contest were not
copyrightable because the language for writing contests rules. If there are a
limited number of ways to express an idea then there is no originality left.
 Functionality?
 If not only one form of expression, at best only a limited number, to permit
copyrighting would mean that a party or parties, by copyrighting a mere
handful of forms, could exhaust all possibilities of future use of the substance.
Lotus v. Borland (p. 98): The fight is over how the functional commands are
used. The hierarchy of instructions were developed by Lotus 1-2-3, and Borland
to ease their entry into the market they wanted to make it easy for Lotus users to
use Borland. Lotus said that the hierarchy instructions were protectable
expressions. The court disagreed and said that the menu hierarchy are not
copyrighable.
 A computer menu hierarchy
 Are computer menu hierarchies’ protectable expressions.
Lotus was not saying that they had a copyright in the cell method. They said they
have only a copyright in the expression of commands.
American Dental Ass’n v. Delta Dental Plans Ass’n (p. 110): ADA wrote
codes for hundreds of procedures for dentists to use and Delta Dental Plans
used them. ADA tried to say they had a copyright on the codes.
Bibbero Systems Inc. v. Colwell Systems, Inc. (p. 112): Blank forms are not
copyrightable. Bibbero said that Colwell infringed on their copyright of the
medical form they had developed.
 Blank for rules
 Certification of Registration is PFC of copyrightable and shifts burden
 Text + rule
Continental Causality Co. v. Beardsley (p. 117): Beardsley developed a new
kind of insurance and published a pamphlet describing the policy and including
forms. Continental (competitor) copied the forms but not the description.
Continental said that according the Baker v. Selden,
 Thin copyright: Court will give copyright, but the slightest variation on the work
voids the copyright.
§101 Definitions
* 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. The
term “compilation” includes collective works.
§103 Subject matter of copyright: Compilations and derivative works
 (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 scope, duration, ownership, or subsistence of a copyright protection in the
preexisting material.
Feist Publications, Inc. v. Rural Telephone Services (1991): The white pages
case. There was no originality requirements met. The Phone Company is
required by the law in a certain format to print the phone book. The Constitution
only requires creativity, hard work has nothing to do with it. “Sweat of the brow”
doctrine does not hold here.
 Who are the parties
Factual Narratives (p. 132)
Nash v. CBS (p. 132): Mr. Nash wrote a book saying that Dillinger was not killed
at the Biograph Theater as a fact. He should have labeled his book as fiction
and then he could have copyrighted it.
 What the plot?
 Fiction v. non-fiction?
 Why would a novel be protected?
 What was taken?
Thursday January 27, 2000 Class
Assignment for next class is based on the video.
Review:
 Started §103 compilations and Derivative Works
Cannot give more than you have: If movie falls in public domain and book has
not the book still remains copyrighted.
 Copyright in compilation works is in the “originality added”
 Does not cover pre-existing works (those are independently copyrighted)
 Factual Narratives and Copyright estoppel
Wainright Securities v. Wall Street Transcript Corp. (p. 136):
Roth Greeting cards v. United Card Co. (p. 139):
 What are the potentially copyrightable elements of a greeting care
 What was copied?
 Is the sum greater than the whole of its parts?
 Simple drawing and simple text
 Is the whole greater than the sum?
 Does the dissent have the better argument
 Or is this just a bright line problem?
Atari Games Corp. v. Oman (p. 141):
 Who cares?
 Atari litigated this case just to get a definitive answer as to wheter the
interface is copyrightable from the underlying software.?
 This court kept sending this back to the register of copyright. The register of
copyright registers this as a copyrightable product under the rule of doubt.
T-shirts (p. 143):
 Short words or phrases are not copyrightable
 The designs are similar, but the analysis would be simiilar to the dissenting in
Roth Greeting Cards.
§105: Subject matter of copyright: United States Government works
 Copyright protection under this title is not available for any work of the United
States Government, but the United States Government is not precluded from
receiving and holding copyrights transferred to it by assignment, bequest or
otherwise.
Matthew Bender & Co. v. West Publishing Co. (p. 144):
 What copyrighted work is at issue?
 What exactly is copyrighted (p. 146)?
- Arrangement of the West Case is in the way they chose to arrange
court cases based on population, etc.
- Page number citing.
- West claims their caption was copyrightable by shortening names
 Court felt that Morrisey held that there would be
Matthew Bender & Co. v. West Publishing (p. 157):
 Hyper law republshed cases as West had complied them, w/o using the West
cites, but used the same pagnation.
 If you take out the West enhancements and put cases on a CD in any order,
the computer does not care. Computers can search anyway you want.
West Publishing Co. v. Mead Data Central, Inc. (p. 158):

CCC Information Services v. Maclean Hunter Market Reports, Inc. (p. 160)
 Publishes the “Red Book”
 (1) Is the Red Book original?
 (2) Idea/Expression Merger?
 (3) Public Domain?
Government Incorporation of Privately Authored Materials (p. 168)
CPT Codes
February 1, 2000 Tuesday Class
Harry Potters stories
Copyright
 Reporter Example:
- Copyright of what is included in the Pacific Reporter would be §103
(compilation and derivative works) by what states they put in the
reporter
- Parallel Citation: this is a fact that cannot be copyrighted. West may
claim a compilation
- Authoring Judge Synopsis is copyrightable
- Head-notes are copyrightable
- West Topic and Key Number: can copyrightable
When does Peter Pan go into the public domain in the UK?
BellSouth Advertising & Publishing Corp. v. Donelley Information
Publishing, Inc. (p. 169)
 BAPCO publishes yellow pages
 Parties conceded copyright to yellow pages
 What was not copyrightable?
Extra-Copyright Protection of Databases
 Created sui generis (of its own kind) protection? Unique protection was found
in live performances?
 Protects sweat of the brow. Commerce Clause protects this.
Collections of Information Anti-piracy Act
 What does the title assume? This assumes that someone owns that data and
it is being stolen. (Sweat of the brow is not enough)
 Let’s discuss some §1401 definitions (p. 173)
- Collection of information: means that it has collected and has been
organized for the purpose of bringing discrete items of information
together
 §1402 Prohibition against misappropriation
 §1403 Permitted acts
Problem: It’s A Wonderful Life:
New Version Copyright 1986
February 3, 2000 Class
Mason v. Montgomery (p. 176)
 Maps: The underlying facts were merged (Merger doctrine)
- In the context of the maps there are only a limited finite way of showing
the information in the maps. (Maps are just a compilation of facts)
 MDI could design their own map, but they
Derivative Works
 A derivative work is a work based upon one or more preexisting works
 Such as translations, musical arrangements, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgement,
condensation, or any other form.
 In which a work may be recast transformed or adapted
 A work consist of editorial revisions annotations, elaborations, or other
modifications which as a whole represent an original work of authorship
L Batlin & Son v. Snyder (p. 183)
 1886 patent issued for bank
 1975 Snyder COPR redesigned bank in plastic
- Umbrella no longer detachable
 Batlin also orders some in Hong Kong customs refuses to allow import
 B seeks District court and says that copyright is void
 U.S. Customs Service did not let the banks in for copyright infringement
(tipped off by Snyder)
 The item was not copyrighted and this was all in the public domain. Snyder
had a copyright on his derivative work.
 “contain some substantial, not merely trivial originality”
 Independent creation
 “substantial variation not merely a trivial variation such as may occur in the
translation into a different medium”
 special skill is not enough to demonstrate originality
 true artistic skill is required to make a reproduction Copyright
 Distinguish from the Mezzotint Case, Distinguishing from Hand of God case?
 Rare Rodin? Replica?
Dissent
 Any distinguishable variation is enough”
- Independent efforts + more than trivial changes
 New or original combination of materials in public domain may be sufficient to
qualify for Copyright.
Originality in Derivative Works (p. 188)
 Originality only if skill and labor?
- Didn’t Feist reject this?
 Photographic Works.
- Copying the Old Masters: Can’t do according to the 2nd Cir. Court.
 Copying Disney?
- Is Tarzan the story copyrighted
- Is Disney’s version a derivative work of the original Tarzan movies
- Does Disney have to get permission from all of the other Tarzan
movies to make the movie
- Tarzan movie done, Tarzan action figure is sold through McD with
licensing arrangement
- Hasbro wants to sell Tarzan movie. Hasbro must license from:
- McD if they have an exclusive license
- Non-exclusive license then they have to license the Tarzan character
and get permission from McD and Disney. If creating own version of
doll goes only to Disney.
An unauthorized infringing work (derivative work) is not copyrightable.
Moral of the story is find out (p. 196) Maljack Production v. UAV Corp.
Panning and scanning: Enhance the sound /
Is colonization (Where did they get the colors from?) How do they know to
make tie a different color? Was discretion used or were color pictures
used for advertising looked at, were the costumes called up to make as
authenticate. Talk to costume designers. Etc. IF they could scan the picture
in the computer colonization would match.
February 8, 2000 Class
E) Computer Programs (p. 196)
What do Computers add to Copyright problems?
Final Report of the National Commission on New Technological Uses of
Copyrighted Works (CONTU) (1978) (p. 197)
 Economic models of software copyright (p. 197)
 Why wasn’t software protection important to Congress?
- cost of copying provided high protection
- computers were expensive
- software was customized per machine
 Modern Economics of Copying
- recover costs + profits on first sale of work
 costs so high that demand and quantity gods down
- recover costs + profits on multiple sales w/ copyright (CONTU)
- subsidy
 government or university sponsored
- pro bono publico (for the pubic good) Free Ware
 ????
 THERE ARE OTHER OPTIONS!
 Why not patent or trade secrets?
- advantages/disadvantages
No protection until patent is issued
Debate whether software is patenable
- patents expensive complicated, shorter duration and preclude
independent creation
- trade secret (Substantially protected this way), expensive and difficult
to keep
 Status of Computer Authored Works
- Should joint authorship be included with computers? Computers do
not added originality
 Congress added?
- Congress added §101 (definition) & §117
- CONTU is the legislative history to §§101, 117 (implication is that
software is copyrightable, the argument would be that it is included
under CONTU in legislative history)
 Apple Computer Inc. v. Franklin Computer Corp. (p. 202)
- PI, Apple appealed to prevent Franklin from infringing
- District Court had doubt about copyrightability
- Franklin sold the ACE computer that was Apple compatible
- Under the statute copyright extends to wrks in any tangible means of
expression “from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or
device.
Literary Works is very broad, and the list of copyrightable work of
§102(a) is not exhaustive
- Should operating systems and/or application software be copyrighted?
 Operating systems could become an application, therefore there is
no distinction between the two
 Instructions may be copyrightable, the fact that the computer
 Idea v. Expression Dichotomy
- I want to infringe your copyright, therefore I should be able to…This is
the argument here.
- Apple software can be changed
Data General Corp. v. Grumman Systems
 Object v. source code (Only registered the source code, not the object code)
- Copyright exists when it is fixed in a tangible form (Object code is that,
and copyright exists when it is in a tangible form.
 Registration does not define copyright
 Register once, 3 copyrights
-
F) Pictorial, Graphic and Sculptural Works (p. 214): include two-dimensional
and three dimensional works of fine, graphic, and applied art, photographs, prints
and art reproduction, maps, globes, charts, diagrams, models, and technical
drawings, including architectural plans. Such works shall include works of artistic
craftsmanship insofar as their form but not their mechanical or utilitarian aspects
are concerned; the design of a useful article, as defined in this section, shall be
considered a pictorial, graphic, or sculptural work only if, and only to the extent
that, such design incorporates pictorial, graphic, or sculptural features that can
be identified separately from, and are capable of existing independently of, the
utilitarian aspects of the article.
Draft, Second Supplementary Report of the
1) What is a “Useful Article”?:
2) Separability:
Mazer v. Stein (p. 216)
 Separability
Boat Hulls are copyrighted
Architectural Works
February 15, 2000 (Monday) Class
February 18, 2000 (Wednesday) Class
G) Architectural Works (p. 247)
H) Characters (p. 254)
I) Government Works and Other Public Policy Issues (p. 266)
February 22, 2000 (Monday) Class
OWNERSHIP (p. 275)
1) Authorship Status
Andrien v. Southern Ocean County Chamber of Commerce (p. 275)
2) Authorship as an Economic Concept: Works Made for Hire (p. 278)
§101 “Work for Hire”
§201 Ownership of copyright
a) Employee-created works
Community for Creative Non-Violence v. Reid (p. 279)
Aymes v. Bonelli (p. 290)
Carter v. Helmsley-Spear (p. 291): This was decided as a work for hire because
the sculptors were paid a weekly salary on a 40 hour per week basis, paid
insurance and all other employee related costs.
What are moral rights? Of artists spring from belief that artist is process of
creation injects artists spirit into work and that artists personality, as well as
integrity of work, should therefore be protected and preserved; because
Moral rights are rights of attribution. Generally consists of right of artist to be
recognized by name as author of work or to publish anomously or
pseudonymously, right to prevent author’s work from being attributed to someone
else, and to prevent use of author’s name on works created by others, including
distorted editions of author’s original work.
“Within the Scope of Employment” (p. 293)
February 22, 2000 Thursday Class
3) Authorship as an Intellectual Concept: Joint Works (p. 300-308)
Thomson v. Larson (p. 300)
February 29, 2000 Tuesday Class
B) Transfer of Copyright Ownership (pp. 311-319)
1) Divisibility and Formal Requirements (p. 311-319)
§101 Definition (p. 311): A “transfer of copyright ownership” is an
assignment, mortgage, exclusive license, or any other conveyance,
alienation, or hypothecation of a copyright or of any of the exclusive rights
comprised in in a copyright whether or not it is limited in time or place of
effect, but not including a nonexclusive license.
§201 Ownership (p. 311): Transfer of Ownership
(1) Ownership can be transferred in whole or in part by any means of
conveyance or by operation of law
(2) Any of the exclusive rights comprised of §106 may be transferred as
provided in clause (1) and owned separately. The owner of any particular
exclusive right is entitled to the extent of that right, to all of the protection
and remedies accorded to the copyright owner by this title
§204 Execution of transfer of copyright ownership (p. 312): 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.
Divisibility (p. 312):
Effects Associates v. Cohen (p. 313):
The “Stuff” special effects by Effects Assoc. Cohen claims copyright to that part
(which he didn’t pay for) Effects claimed copyright in that area of the film.
Recordation of Transfers and Other Documents (p. 319)
2) Scope of Grant (p. 321-337)
Transfer: can be an outfight assignment (selling or giving away the work)of
license (gives permission to someone to use the work).
Transfer of a physical object does not implicate that there is also a transfer in
copyright.
Copyrights are infinitely divisible, therefore subparts can be transferred.
1) License can be in US for paperback, 2) screenplay 3) sell in Canada.
Copyright is owned to the extent of the license terms. Licensee of one
Valid Transfer of Copyright: Statute of Frauds requirement Copyright transfers
must be in writing. Non-exclusive do not have to be in writing. Only assignments
and exclusive licenses need to be in writing.
Instrument of transfer in the library of congress (copyright office) is possible (not
required)
1) Gives public notice to copyright
2) Allows use of priority rules if there is a conflicting transfer.
3) Grace Period for filing: 30 days w/i US / 60 days outside US.
4) Transfer must be done in good faith and for value and consideration.
1909 Statute still current: Transferability of renewal interest. Work is published
before 1/1/78. 1st term of copyright the author conveyed away the copyright, but
recited that he was transferring the original and renewal term. Is this transfer of
the renewal interest made under the 1st term of the copyright valid?
Courts said that the transfer is valid, but it is a contingent interest only. (Author
must survive until the end of the 1st term. (If author did not live until the 2nd term
he would not have the right to transfer (did the transfer vest?)
Derivative Works that are being prepared: Assignment of copyright of a song that
is in a movie, the video is based on the movie. Who gets the renewal interest?
May the assignee exploit the derivative work that was made?
Stewart v. Abend (Rear Window Opinion) Short story rights were sold. Woolrich
died before 28 year vested. Had no surviving spouse or kids. Executor secured
the renewal interest. Sold the work to Abend. He sued Stewart and said that the
continued use of the derivative work is not allowed.
Cohen v. Paramount Pictures Corp. (p 321) (before 1976 Act)
Cohen wrote a song “Merry Go Round) and granted H & J a licenses that gave
them the right to use the song in a movie and to show the film in theatres and on
TV. H&J assigned to Paramount all of its rights and interests in the movie,
including all of the rights and interest created by the license from Cohen to H&J.
Paramount had videos of the film made
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. (p. 325) (before
1976 Act)
The Rite of Spring:
§201 Ownership of copyright (p. 334)
Copyright Transfer “By Operation of Law” (p. 335)
Fantasy v. Fogerty (p. 337)
Duration and Renewal, and Termination of Transfer
A) Duration and Renewal (pp. 339-343)
1) The Policy Debate (pp. 345-346)
2) Copyright Duration Under the 1976 Act, as Amended in 1998 (pp. 345346)
a) Works Created or Unpublished After 1977 (p 345)
b) 1976 Act Treatment of Works First Published Under the 1909 Act (pp.
347-359): Federal protection only began with a published work with
notice (unpublished works were protected by common law state
copyright which provided indefinite protection until it is published (this
is known as the right to 1st publish) If published w/o notice then lost all
of rights.
(1) Under 1909 Act could get 28 years with a renewal for another 28
years. Must apply for renewal or would fall in public domain. State
setup alternative parties who could set copyright (surviving spouse,
children executor, or next of kin).
(2)
B) Renewals and Derivative Works (pp. 359-369)
C) Termination of Transfers (pp. 371-382)