Introduction to Intellectual
Property: Copyright
Professor Todd Bruno
Theory of ©
• Reward for the author
• Stimulate artistic creativity
Intellectual Property
Copyright © Beth Noveck
To promote the progress of science and useful arts,
by securing for limited times to authors and
inventors the exclusive right to their respective
writings and discoveries
Article 1, Clause 8, Section 8
Noah Webster
Categories of © Subject Matter
17 USC 102(a)
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literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works;
sound recordings; and
architectural works
Intellectual Property
Copyright © Beth Noveck
Subject Matter of Copyright
4
5
Copyright protection subsists, in accordance with
this title, in original works of authorship fixed in
any tangible medium of expression, now known or
later developed, from which they can be perceived,
reproduced, or otherwise communicated, either
directly or with the aid of a machine or device
1
2
3
Intellectual Property
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Original Works of Authorship
• Independent Creation
• Modicum of Originality
Intellectual Property
Copyright © Beth Noveck
Feist Publications c. Rural
Telephone Service, 1991
The “Telephone Book” Case
Why is Rural’s Telephone Book
Not Deserving of © Protection
1.
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6.
Intellectual Property
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Take Away
• Rejects “sweat of the brow”
• Must read Copyright Act in conjunction with the
Constitution
• Sine qua non (An essential element) of copyright
is originality
• Infringement requires
– Valid ©
– Copying of original elements
• Facts are not copyrightable
• Copyright in compilations is “thin”
Intellectual Property
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Original Work of Authorship
• Work of authorship must be original
• Fixed in a tangible medium
• What is original?
– an independent creation
– modicum of originality
• What is fixed?
Intellectual Property
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Fixed
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy 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…
Intellectual Property
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Fixation in a Tangible Medium
• Words, numbers, notes, sounds, pictures,
any other graphic or symbolic indicia
• Embodied in a physical object in written,
printed, photographic, sculptural, punched,
magnetic or any other stable form
• Why have a fixation requirement?
Intellectual Property
Copyright © Beth Noveck
What Isn’t The Subject Matter of
Copyright
• Exception
• 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 regardless of the form in which it is
described, explained, illustrated or embodied in such a
work.”
Intellectual Property
Copyright © Beth Noveck
Baker v. Selden, 1879
The Idea-Expression Dichotomy
Take Away
• The idea is the “common property of the
whole world”
• The author has the right to express the idea
in his own way. Only expression is
protectable.
• Why?
–Cannot enclose fundamental ideas
–Copyright is not subject to examination and allowing copyrights of ideas
would potentially perpetrate a “surprise and fraud upon the public” (Baker
v. Selden)
Intellectual Property
Copyright © Beth Noveck
Merger Doctrine
• The subject matter is not an idea but there
are so few ways of expressing the idea that
there is a MERGER
• The expression merges into the idea itself
• Examples: Picture of airplane to
communicate airport; garbage can icon to
communicate “trash”
Intellectual Property
Copyright © Beth Noveck
Morissey v. Procter & Gamble, 1967
Rules to a contest
“We cannot recognize copyright as a game of chess in which the
public can be checkmated”
First to express a simple idea would prohibit all future users
• “1. Entrants should print name, address and social
security number on a boxtop, or a plain paper.
Entries must be accompanied by * * * boxtop or
by plain paper on which the name * * * is copied
from any source. Official rules are explained on *
* * packages or leaflets obtained from dealer. If
you do not have a social security number you may
use the name and number of any member of your
immediate family living with you. Only the person
named on the entry will be deemed an entrant and
may qualify for prize.
• “Use the correct social security number belonging
to the person named on entry * * * wrong number
will be disqualified.“
• (Plaintiff’s Rule)
Intellectual Property
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• “1. Entrants should print name, address and Social Security
number on a Tide boxtop, or on [a] plain paper. Entries
must be accompanied by Tide boxtop (any size) or by plain
paper on which the name ‘Tide’ is copied from any source.
Official rules are available on Tide Sweepstakes packages,
or on leaflets at Tide dealers, or you can send a stamped,
self-addressed envelope to: Tide ‘Shopping Fling’
Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.
• “If you do not have a Social Security number, you may use
the name and number of any member of your immediate
family living with you. Only the person named on the
entry will be deemed an entrant and may qualify for a
prize.
• “Use the correct Social Security number, belonging to the
person named on the entry -- wrong numbers will be
disqualified.“
• (Defendant’s Rule
Intellectual Property
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What things can be copyrighted
17 USC 102(a)
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literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works;
sound recordings; and
architectural works
Intellectual Property
Copyright © Beth Noveck
Categories of ©
Subject Matter
•
literary works
– “works other than audiovisual works, expressed in words, number,
or other verbal or numerical symbols or indicia, regardless of the
nature of the materials or objects, such as books, periodicals,
manuscripts, phonorecords, films, tapes, disks, or cards, in which
they are embodied”
– Regardless of literary merit
– Includes non-literal elements: structure, sequence and organization
of the work
Intellectual Property
Copyright © Beth Noveck
Categories of ©
Subject Matter
• musical works, including any accompanying
words
• sound recordings
Intellectual Property
Copyright © Beth Noveck
Categories of ©
Subject Matter
• dramatic works, including any accompanying music
• pantomimes and choreographic works
– Written plays
– Labanotation of a choreographic work or pantomime
– Film recording of a choreographic work or pantomime
Intellectual Property
Copyright © Beth Noveck
Categories of ©
Subject Matter
• pictorial, graphic, and sculptural works
– “two-dimensional and three-dimensional works of fine,
graphic, and applied art, photographs, prints and art
reproductions, maps, globes, charts, diagrams, models,
and technical drawings, including architectural
plans…”
– Regardless of artistic merit
– Utilitarian function (or useful article) exception (lamps,
bathroom sinks, clothing, and computer monitors)
Intellectual Property
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Useful Article Doctrine
• Pictorial, graphic and sculptural works
• Copyrightable are only those elements that
are independent of the utilitarian aspects of
the article
• Identified separately from the useful article
Intellectual Property
Copyright © Beth Noveck
Categories of ©
Subject Matter
• Audiovisual works & motion pictures
– "Audiovisual works" are works that consist of a series of related images
which are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, together with
accompanying sounds, if any, regardless of the nature of the material
objects, such as films or tapes, in which the works are embodied.
– "Motion pictures" are audiovisual works consisting of a series of related
images which, when shown in succession, impart an impression of
motion, together with accompanying sounds, if any.
– Sound track is part of the motion picture
Intellectual Property
Copyright © Beth Noveck
Categories of © Subject Matter
• architectural works (post Dec 1, 1990)
– An "architectural work" is the design of a building as embodied in
any tangible medium of expression, including a building,
architectural plans, or drawings.
– The work includes the overall form as well as the arrangement and
composition of spaces and elements in the design, but does not
include individual standard features.
– Building
– Plans
– Drawings
– Cannot prevent picture taking
– Cannot forbid alterations
Intellectual Property
Copyright © Beth Noveck
Exclusive Rights of Copyright
Owners
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Reproduce the work
Prepare derivative works
Distribute copies or phono-records
Perform the work
Display the work publicly
Transmit sound recording digitally
Intellectual Property
Copyright © Beth Noveck
Works for Hire
• Rights vest with individual author upon
creation
• Rights vest with corporate author upon
publication
• What about an individual employee or
consultant creating for a corporation?
Intellectual Property
Copyright © Beth Noveck
Community for Creative NonViolence v. Reid
490 U.S. 730 (1989)
Work For Hire Definition
(1)
a work prepared by an employee within the scope of his or her employment; or
(2)
a work specially ordered or commissioned for use as a contribution to a collective work, as a
part of a motion picture or other audiovisual work, as a translation, as a supplementary work,
as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. For the purpose of the foregoing sentence, a
''supplementary work'' is a work prepared for publication as a secondary adjunct to a work by
another author for the purpose of introducing, concluding, illustrating, explaining, revising,
commenting upon, or assisting in the use of the other work, such as forewords, afterwords,
pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a
literary, pictorial, or graphic work prepared for publication and with the purpose of use in
systematic instructional activities.
Intellectual Property
Copyright © Beth Noveck
9 categories
Of works
Work Made For Hire
• Exception to the fundamental principle that copyright
ownership vests initially in the individual who creates the
work.
• If work made for hire then the employer will be the owner
(“pre-assignment”)
• Two-pronged approach
– Employee (common law agency definition)
– Independent Contractor, fulfilling specified conditions
• Contracting Around the Doctrine
Intellectual Property
Copyright © Beth Noveck
Copyright Duration 302-05
Date of Creation
Start
Term
After 1/1/78
(95 years for pre-1978)
Fixed in a tangible
medium of expression
Life+70; Lesser of 95 from
publication, or 120 years
from creation (works for
hire)
1964-1977
When published with
notice
28 years, 67 year extension
1923-1963
When published with
notice
28 years, 67 year optional
renewal
Pre-1978 but not yet
published
January 1, 1978
Life+70 or at least until
2003 if remains
unpublished, if published
then 2048
Sound recordings before
Feb 15,1972
Depends on state law
Protections not annulled or
limited until 2047
Eldred v. Ashcroft, 2003
Constitutionality of Copyright Term
Extension
To promote the progress of science and useful arts,
by securing for limited times to authors and
inventors the exclusive right to their respective
writings and discoveries
Article 1, Clause 8, Section 8
Noah Webster
Exclusive Rights of Copyright
Owners
•
•
•
•
•
•
Reproduce the work
Prepare derivative works
Distribute copies or phono-records
Perform the work
Display the work publicly
Transmit sound recording digitally
Intellectual Property
Copyright © Beth Noveck
The Right to Reproduce the Work
• Right to copy 106(1)
• Right to prevent others from making exact or
“substantially similar” reproductions
• Law prevents copying but not independent creation
• How to prove copying?
– Direct proof
– Circumstantial evidence
• Must have substantial copying
• Lay person test
Intellectual Property
Copyright © Beth Noveck
Test of Infringement for Copying
• Did Defendant copy from plaintiff’s copyrighted
work?
– Admission
– Circumstantial Evidence
• ACCESS
• SIMILARITY
• Assuming there was copying, did it constitute
improper appropriation
Bright Tunes Music Corp. v. Harrisongs Music,
Ltd., 420 F.Supp. 177 (SDNY 1976),
• http://www.benedict.com/Audio/Harrison/Harrison.aspx
• "His subconscious knew it already had
worked in a song his conscious did not
remember... That is, under the law,
infringement of copyright, and is no less so
even though subconsciously accomplished."
Intellectual Property
Copyright © Beth Noveck
Steinberg v. Columbia Pictures
Industries, Inc.
663 F.Supp. 796
http://www.thenewyorkerstore.com/assets/2/50326_l.jpg
http://www.movie-maniacs.hostned.com/images/1sheets/m/moscowonhudson.jpg
Intellectual Property
Copyright © Beth Noveck
Steinberg v. Columbia Pictures
Industries, Inc.
• What were the protected elements of the work
under Copyright law?
• Were those elements copied by Columbia?
• Did they copy Steinberg’s compilation of
unprotectable elements?
• What other arguments could be made for
Columbia Pictures? Counter-arguments?
Intellectual Property
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Scenes a Faire
• Scène à faire (French for "scene to be made" or "scene that
must be done"; plural: scènes à faire) is a scene in a book
or film which is almost obligatory for a genre of its type.
• In the U.S. it also refers to principle in copyright law in
which certain elements of a creative work are held to be
not protected when they are mandated by or customary to
the genre.
• For example, a spy novel is expected to contain elements
such as numbered Swiss bank accounts, a femme fatale,
and various spy gadgets hidden in wristwatches, belts,
shoes, and other personal effects. These elements are not
protected by copyright, though specific sequences and
compositions of them can be.
Intellectual Property
Copyright © Beth Noveck
Scenes a Faire
Walker v. Time Life Films, Inc., 784
F.2d 44 (2d Cir. 1986)
Intellectual Property
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Rights of Copyright Owners
• Right to Copy
• Right to Make Derivative Works
• Right to Distribute (106-3)
– “.. the owner of copyright under this title has
the exclusive rights to …to distribute copies
or phonorecords of the copyrighted work to
the public by sale or other transfer of
ownership, or by rental, lease, or lending;”
Intellectual Property
Copyright © Beth Noveck
Right of Public Performance and
Display
• .. the owner of copyright under this title has the exclusive
rights to …
• (4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures
and other audiovisual works, to perform the copyrighted
work publicly; and
• (5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work publicly.
Intellectual Property
Copyright © Beth Noveck
Display and Performance
• Display
• To "display" a work
means to show a copy of
it, either directly or by
means of a film, slide,
television image, or any
other device or process or,
in the case of a motion
picture or other
audiovisual work, to show
individual images
nonsequentially.
• Perform
• To "perform" a work means to
recite, render, play, dance, or
act it, either directly or by
means of any device or process
or, in the case of a motion
picture or other audiovisual
work, to show its images in any
sequence or to make the sounds
accompanying it audible.
Intellectual Property
Copyright © Beth Noveck
Display Right
• Control over display of work is limited by
109-c
• Does not include the right to control public
display in the place where the copy is
located
Intellectual Property
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Performance Right
• Right is to control public performance not
private
• When does a performance become public?
Intellectual Property
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Statutory Limits on Performance and
Display Rights
• Fair Use – TBD
• Public Interest (Section 110)
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–
Live educational performances and displays
Transmissions to classrooms
Religious performances and displays
Face-to-face performances of non-dramatic literary or
musical works for free or charitable purposes
Intellectual Property
Copyright © Beth Noveck
Fair Use
• 17 USC 107
• Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright.
• Not an exhaustive list
Intellectual Property
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Fair Use Test
• In determining whether the use made of a work in any
particular case is a fair use the factors to be considered
shall include-• (1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
• (2) the nature of the copyrighted work;
• (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
• (4) the effect of the use upon the potential market for or
value of the copyrighted work.
Intellectual Property
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Purpose of the Use
• What was the nature of the use?
• Was it commercial?
• Was there good faith and fair dealing?
Intellectual Property
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Nature of the Work
• What was the work at issue?
• What was the nature of the material copied;
published or unpublished?
Intellectual Property
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Amount and Substantiality of the
Portion Use
• In Absolute Terms?
• Is it the heart of the original work?
Intellectual Property
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Effect on the Market
• Impairment of marketability?
• If it became widespread practice?
• Let’s consider some examples:
Intellectual Property
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Campbell v. Acuff-Rose Music,
Inc.
510 U.S. 569 (1994)
Factor One:
1. Was it
2. Was it
Intellectual Property
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Factor One: Take Away
• Presumption against fair use as a result of
commerciality is reduced
• Commerciality by itself is not dispositive
• Focus not only on for-profit status but on
the use
• Sliding scale test
• No given use is presumptively fair use
Intellectual Property
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Factor Two:
1. What
2. What
Intellectual Property
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Factor Two Take-Away
• Feist Over Fiction
• Idea/expression dichotomy
• Public interest rationales for allowing the
use of certain kinds of work
• Even though copyright in expressive work
is “thicker”
Intellectual Property
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Third Factor:
1. How much work is borrowed?
2. What was the “heart of the work”?
Intellectual Property
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Third Factor Take-Away
• Extent of permissible copying varies with the
purpose and character of the use
• Not only quantity but quality that matters
• Do not purloin “Expressive heart” or the “Essence
of the Original”
• Inquire as to how it factors in the new work
• Parody’s art lies in the tension between a known
original and its pardodic twin
• “Market failure” argument
Intellectual Property
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Fourth Factor:
1. Effect on
2. And on
Intellectual Property
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Fourth Factor Take-Away
• Commercial use does not imply de facto a harm to the
market
• Have to inquire about harm to market for original and
derivative works
• Have to inquire about the widespread effects
• Where they may be a market, it must be protected
• Suppression of the market is not the same thing as
usurpation
Intellectual Property
Copyright © Beth Noveck