COPYRIGHT LAW FALL 2008
CLASS 3
August 25, 2008
Wrap-Up: Historical Trends in
Copyright Law
• 1. Progressive expansion of
copyrightable subject matter
• 2. Expansion of duration
• 3. Growing U.S. participation in
international copyright system
• 4. Steadily reduced importance of
formalities (post 1978)
RATIONALE UNDERLYING
COPYRIGHT LAW
• Why have copyright law?
WHO DOES COPYRIGHT LAW
BENEFIT?
WHO DOES COPYRIGHT LAW
BENEFIT?
• Authors
• Authors’ Families
• Corporate Interests - Publishers,
Distributors, Producers
• Society, General Public/Government
• Lawyers
WHO DOES COPYRIGHT LAW
BURDEN?
PRIMARY PURPOSE OF
COPYRIGHT LAW?
• Do you agree with Chafee (p. 15) that the
primary purpose is to benefit the author?
• Or do you agree with the statement in
Mazer v. Stein (1954) that “The copyright
law, like the patent statutes, makes reward
to the owner a secondary consideration”?
JUSTIFICATIONS FOR
COPYRIGHT LAW
• 2 types:
• (1) philosophical
• (2) economic
PHILOSOPHICAL
JUSTIFICATIONS FOR
COPYRIGHT
• PROPERTY
RIGHT? (e.g.
John Locke –
labor theory)
PHILOSOPHICAL
JUSTIFICATIONS FOR
COPYRIGHT
• PERSONAL
RIGHT (e.g.
MargaretJane Radin)
(MORAL
RIGHT)?
ECONOMIC JUSTIFICATIONS
• Samuel Johnson, “No
man but a blockhead
ever wrote, except for
money.”
• Is there constitutional
support for this
theory?
INTELLECTUAL PROPERTY: A
PUBLIC GOOD?
• Incentive to create
theory
• Incentive to exploit
theory
Economic Analysis of Copyright
Doctrine
• Is the copyright
monopoly
NECESSARY to
encourage authors to
produce creative
works that will benefit
society?
• What alternatives to
copyright are there?
Economic Analysis of
Copyright Doctrine
• William M. Landes and Judge
Richard A. Posner, An Economic
Analysis of Copyright Law, 18 J.
Legal Stud. 325 (1989)
• Are their arguments valid in a
digital age?
TWO IMPORTANT
COPYRIGHT LAW CASES
• 1. Burrow-Giles Lithographic Society v.
Sarony (1884) - CB p. 29
• 2. Bleistein v. Donaldson Lithographic Co.
(1903) - CB p. 34
Burrow-Giles Lithographic
Society v. Sarony (1884) CB 29
• What were the
2 important
constitutional
questions on
which the
Supreme Court
had to rule in
this case?
Would a snapshot be copyrightable?
Bleistein v. Donaldson
Lithographing Co. (1903) CB 33
Bleistein v. Donaldson
Lithographing Co. (1903) CB 33
• Is this decision
consistent with
the Patent and
Copyright
clause?
Intellectual Property Clause
• The Congress shall have Power . . . to
Promote the Progress of Science and the
useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right
to their respective Writings and
Discoveries.”
DISTINGUISHING COPYRIGHT
FROM OTHER TYPES OF IP
• Patent
• Trademark
• Trade Secrets
Frederick Warne & Co. v. Book
Sales, Inc. (S.D.N.Y. 1979) CB p.
63
• Lanham Act requires a “likelihood
of confusion”
• Does © public domain status
preclude trademark protection??
Dastar v.
20th Century Fox (2003) CB p. 68
Crusade in Europe
Campaigns
in
Europe
Article on Dastar
• See Jane C. Ginsburg, Of Mutant Copyrights,
Mangled Trademarks, and Barbie's Beneficence:
The Influence of Copyright on Trademark Law,
Columbia Research Paper (Aug. 2007)
Forthcoming in Graeme B. Dinwoodie and Mark
D. Janis (eds.) Trade Mark Law and Theory: A
Handbook of Contemporary Research (Edward
Elgar Press, USA).
• Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=1008595
Wrap-Up
• Rationale underlying copyright law (e.g.
utilitarian, natural right, personhood) will affect
how you view the ideal scope of the law as well as
• What is meant by “Author” “writing” and “to
Promote the Progress of Science and the Useful
Arts” in the U.S. Constitution
• Some overlap between copyright and other forms
of intellectual property