Copyright Law: Spring 2002
Professor Susanna Fischer
CLASS 11
February 18, 2002
GOALS FOR CLASS
• To finish up copyrightability of characters
• To learn how to analyze whether works
prepared by government employees, state
or federal, are copyrightable.
• To begin a new unit on ownership of
copyright
• To learn about the doctrine of works made
for hire
WRAP UP POINTS:
CHARACTERS
• The prevailing view is that characters per
se are entitled to copyright protection
separate of the story in which they appear.
• You should be familiar with the two major
tests for copyrightability in characters: the
Nicholls “specificity” test and the Warner
“story being told” test (which does not
apply to comic book characters, only to
word portraits).
DeCarlo v. Archie Comic
Publications Inc.
Are comic book characters more or
less protectable than literary
characters?
King Features Syndicates (2d
Cir. 1924) CB p. 243
• Did the toy “Sparky”
infringe the cartoon
character?
• What does the
Copyright Act
protect, according to
the 2d Circuit? Is
this stated level of
protection
overbroad?
Detective Comics v. Bruns (2d
Cir. 1940)
• Did Wonderman infringe
Superman?
• Why or why not?
• Has the court properly
limited itself to protecting
the plaintiff’s expression
rather than an idea?
• Would it have made any
difference if Defendant’s
comic had featured
Hercules instead of
Wonderman?
HUGE EXCEPTION TO
COPYRIGHTABILITY:
GOVERNMENT WORKS
• To what extent are U.S.
Government works
copyrightable?
• What about works
prepared under a
government contract?
• Can a Federal
Government employee
own a copyright? If so,
when?
• What is the justification
for these rules?
17 U.S.C. Section 105
• 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.
• Does this apply to postage stamps?
Definition of “Work of United
States Government” (Sect. 101)
• A “work of the United States Government”
is a work prepared by an officer or
employee of the United States Government
as part of that person’s official duties
Sacagawea Dollar Case: U.S. v.
Washinigton Mint (D. Minn. 2000)
• Can D Minnetonka
Mint successfully rely
on section 105 to
defend a copyright
infringement action
brought by U.S. Mint
for issuing silver
replica of the
Sacagawea dollar?
Works of State Governments
• These are not addressed in section 105 so to
what extent can works generated by state
governments obtain federal copyright
protection?
• What are the arguments for and against
• Example: state judicial opinions
Works of State Governments
• In Banks v. Manchester (1888), the U.S.
Supreme Court refused to find that a
compilation of state court judicial opinions
was copyrightable
• The rationale was public policy and a kind
of due process rationale: judicial opinions
are publicly owned because judges are paid
with public funds and the public interest is
served by free access to the law rather than
judicial control of their opinions
County of Suffolk v. First
American (2d Cir. 2001)
• Issue: Are “tax maps” prepared by Suffolk
County copyrightable?
• What procedural stage has this case
reached at the time of the Second Circuit
opinion?
County of Suffolk v. First
American (2d Cir. 2001)
• Issue: Are “tax maps” prepared by Suffolk
County copyrightable?
• What procedural stage has this case
reached at the time of the Second Circuit
opinion?
• Motion to dismiss for failure to state a claim
• How does the Second Circuit rule on
appeal?
County of Suffolk v. First
American (2d Cir. 2001)
• Suffolk County has stated a valid claim that
their tax maps are copyrightable
• 1. Incentive rationale for copyright does
apply to some government works and may
apply to creation of tax maps
• 2. Due process concerns are met - there are
notice requirements of obligation to pay
property taxes that are separate from tax
maps, and taxed individuals are able to get
maps.
Privately Drafted Legislative
Codes
• Can legislative codes that are privately
drafted but later adopted by states as law be
the subject of copyright?
• See Practice Mgt. Info. Corp. v. American
Medical Ass’n (9th Cir. 1997) - where AMA
created coding system was adopted by
HCFA. Did this adoption cause the coding
system to become uncopyrightable?
• Pending rehearing: Veeck v. SBCCI (5th
Veeck v. SBCCI
• The U.S. Court of Appeals for the Fifth
Circuit has granted rehearing en banc in this
case. To see some amicus briefs filed by
law professors, go to:
http://jurist.law.pitt.edu/amicus/ and scroll
down to Veeck
Mitchell Bros. Film Group v.
Cinema Adult Theater (5th Cir.
1979)
• What was the plaintiffs’ claim?
• What was the affirmative defense asserted
by the defendants?
• How did the district court rule on this
defense?
• How did the 5th Circuit rule on appeal?
• Why?
Mitchell Bros. Film Group v.
Cinema Adult Theater (5th Cir.
1979)
• Fifth Circuit held that district court erred in
permitting an affirmative defense of obscenity
under 1909 Act
• 1976 Act to continue to avoid content restrictions
on copyrightability because this best promotes
constitutional goal of encouraging creativity
• 1909 Act is constitutional in this regard. Writings
need not promote science or the useful arts; it is
Congress who must promote these ends.
Devils Films Inc. v. Nectar
Video
• Did the S.D.N.Y. rule that obscenity was a
valid defense to a copyright infringement
action?
• How can this case be distinguished from
Mitchell Brothers?
SUMMARY - COPYRIGHT
IN OBSCENE WORKS
• There is no defense of “obscenity” or
“unclean hands obscenity” to copyright
infringement suits (Mitchell Bros.)
• However, in Devil’s Films, a district court
in a different circuit found that it had
equitable discretion to refuse a TRO
application to seize obscene films in a
copyright infringement action.
AUTHORSHIP
• 3 possible philosophical concepts of
authorship:
• A. Conception of the work
• B. Execution of the Work
• C. Financing the Work
• Which does the Lindsay court choose?
[REMEMBER: Copyright is a form of
INTELLECTUAL PROPETY!]
Lindsay v. R.M.S. Titanic et al.
• Who is Lindsay?
• What is the allegdly
copyrighted work?
• Did the S.D.N.Y. find
that Lindsay was the
author of the work
under federal
copyright law?
• Whose arguments
don’t “hold water”?
AUTHORSHIP
•
•
•
•
•
3 philosophical concepts:
A. Conception of the work
B. Execution of the Work
C. Financing the Work
The Andrien decision reflects the
predominant view preferring A over B.
However, according to the work made for
hire doctrine, C may also be a crucial
determinant of authorship
WORKS MADE FOR HIRE
• WHAT’S A WORK MADE FOR HIRE? See
Copyright Act 1976 section 101 (difference
between employee created works and
specially commissioned works)
• Section 201(b)
• controversy over sound recordings as works
made for hire. Law has now been
“corrected”