Copyright Law –
Ronald W. Staudt
Class 5
September 12, 2013
News today
IP Law360 <news-alt@law360.com>Sept. 12, 2013
Doyle Estate Says It's No Mystery, Sherlock
Still Copyrighted
The estate of Sir Arthur Conan Doyle on Tuesday
urged an Illinois judge to rule that the character of
Sherlock Holmes will remain copyright protected
until 2022 and reject an author's effort to make the
famous detective free for anyone to use.
Beastie Boys Must Face R&B Label's
Copyright Suit
Hip-hop group Beastie Boys may have committed
copyright infringement when it used portions of
songs owned by TufAmerica Inc., a New York
federal judge ruled Tuesday, refusing to dismiss the
record label's suit entirely.
Idea/Expression Dichotomy
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 work.
Idea/Expression Dichotomy
Baker v. Selden
Central doctrine – ideas/systems/recipes- are
out—copyright protects only expression.
Secondary themes
Explain v. use
• “…not given for the purpose of publication in other
works explanatory of the art, but for the purpose of
practical application.”
“Blank account books are not the subject of
copyright…”
Idea/Expression Dichotomy
SMS v. ASP (1st Cir. 2009)
Description of process (office comm. manual) can be expressive, even if pedantic.
Possibly in.
Morrissey v. Procter & Gamble
Thin v. Merger --merger doctrine extended– simple contest rules out
Continental Casualty
Legal form in but thin
Publications International v. Meredith
Recipes without expressive elaboration out
Bibbero Systems & Utopia Provider Systems —forms must communicate
information, not collect information based on
CFR Title 37, Sect. 202.1 which omits
“blank forms…designed for recording information and do not in themselves convey
information.”
Compilations and derivative works
§ 103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section
102 includes compilations and derivative works, but
protection for a work employing preexisting material in
which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(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, any
copyright protection in the preexisting material.
Compilations
§ 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.
Cases
Feist Publications, Inc v. Rural Telephone
Service
Rockford Map gloss
Nash v. CBS
Wainwright Securities
Questions p. 129
Bleistein v. Donaldson
188 U.S. 239 (1903)
Justice Holmes:
“The least pretentious picture has more
originality in it than directories and the
like, which may be copyrighted.”
Jeweler’s Circular Publishing
and Rockford Map
“The man who goes through the streets of a town and puts
down the names of each of the inhabitants, with their
occupations and their street number, acquires material of
which he is the author…” Jeweler’s Circular, 1922.
“All concede, …that "a second compiler may check back his
independent work upon the original compilation." The right
to "check back" does not imply a right to start with the
copyrighted work. Everyone must do the same basic work,
the same "industrious collection." "A subsequent compiler is
bound to set about doing for himself what the first compiler
has done." … The second compiler must assemble the
material as if there had never been a first compilation; only
then may the second compiler use the first as a check on
error. “ Rockford Map, 1985.
Feist black letter
facts are not copyrightable
compilations of facts generally are
100 uncopyrightable facts do not
magically change their status when
gathered together in one place
To qualify for copyright protection, a work
must be original to the author
independently created by the author (as
opposed to copied from other works), and
at least some minimal degree of creativity
two poets, each ignorant of the other, compose
identical poems. Neither work is novel, yet both are
original and, hence, copyrightable.
Feist black letter (cont.)
 Originality is a constitutional requirement.
 facts do not owe their origin to an act of authorship.
 choices as to selection and arrangement, so long as they
are made independently by the compiler and entail a
minimal degree of creativity, are sufficiently original
that Congress may protect such compilations through
the copyright laws.
 Where the compilation author adds no written
expression but rather lets the facts speak for
themselves,… the only conceivable expression is the
manner in which the compiler has selected and arranged
the facts.
 This inevitably means that the copyright in a factual
compilation is thin
Feist black letter:
“sweat of the brow”
 The primary objective of copyright is not to reward the labor of
authors, but "to promote the Progress of Science and useful
Arts
 The "sweat of the brow" doctrine had numerous flaws, the
most glaring being that it extended copyright protection in a
compilation beyond selection and arrangement -- the
compiler's original contributions -- to the facts themselves.
 to make clear that the copyright in a compilation did not
extend to the facts themselves, Congress enacted § 103.
 The statute- § 101--identifies three distinct elements and
requires each to be met for a work to qualify as a
copyrightable compilation:
 Collection and assembly of preexisting material
 Selection coordination and arrangement, and
 Creation, by #2, of an “original” work of authorship
Feist application
 … did Feist, by taking 1,309 names, towns, and
telephone numbers from Rural's white pages, copy
anything that was "original" to Rural?
 Certainly, the raw data does not satisfy the originality
requirement. Rural may have been the first to discover and
report the names, towns, and telephone numbers of its
subscribers, but this data does not "'owe its origin'" to
Rural.
 In preparing its white pages, Rural simply takes the data
provided by its subscribers and lists it alphabetically by
surname. The end product is a garden-variety white pages
directory, devoid of even the slightest trace of creativity.
 Typical, obvious, age-old, commonplace, matter of course,
inevitable…
 copyright rewards originality, not effort
Questions p. 122
What is not “obvious” or “commonplace”
adding new categories to phone book?
all Warhol museums
Is “sweat of the brow” necessary even if not
sufficient?
Rockford Map?
“…The input of time is irrelevant. A
photograph may be copyrighted although it is
the work of an instant and its significance may
be accidental.”
People viewing the dead body of John
Dillinger (Associated Press)
Nash
Facts
Authors as creators and borrowers
Nash as novelist v. historian
Toskvig and Hoehling movie link
Nash holding v. Nash language
Wainwright Securities
Questions pp. 129 - 130
Selection, coordination & arrangement of historical facts
Washington Post Pulitzer Prize hoax
Crane v. Poetic Products
593 F. Supp. 2d 585 (S.D. N.Y. 2009)
“As applied here, Hoehling and Feist result in the
following conclusion: the theory that Pope John
Paul I was murdered and the facts surrounding
his death are not protectable elements of In
God's Name under the Copyright Act, but IGN's
expression of that theory and surrounding facts
-- its selection, coordination, and arrangement
of its theories and facts -- is protectable.”