COPYRIGHT LAW FALL
FALL 2008 CLASS 4
COPYRIGHTABILITY I
Columbus School of Law
The Catholic University of America
Professor Fischer
August 27, 2008
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
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
UNIT II
• Copyrightability: What subject matter is
protected by copyright law?
Constitutional Question
• Is it a “Writing” of an “Author”? If so,
Congress may protect it for a “limited
time” to “promote the progress of Science
and the Useful Arts”
• See e.g. Burrow-Giles
Originality Requirement
• Where in statute?
Originality Requirement
• 17 U.S.C. § 102(a)
“Copyright protection subsists in original
works of authorship fixed in a any
tangible medium of expression . . . .”
Originality Requirement
• 17 U.S.C. § 102(a)
“Copyright protection subsists in original
works of authorship fixed in a any
tangible medium of expression . . . .”
Is there a definition of “Original”?
An Originality Question
• Jane writes a song. Jane never
plays her song for anyone else, and
consequently Emma has never
heard Jane’s song. Suspend
credulity and imagine that Emma
writes a song that is identical to
Jane’s. Is Emma’s song
copyrightable?
NOVELTY IS NOT REQUIRED
FOR COPYRIGHT PROTECTION
• Unlike patent
protection
• See Alfred Bell & Co.
v. Catalda (2d Cir.
1951) CB 52
Learned Hand: Independent
Creation Requirement
• “. . .[I]f by some magic a
man who had never
known it were to compose
anew Keats’ Ode On a
Grecian Urn, he would be
an “author,” and, if he
copyrighted it, others
might not copy that poem,
though they might of
course copy Keats.”
• Sheldon v. MGM, 81 F.2d
49, 54 (2d Cir. 1936),
aff’d, 309 U.S. 390 (1940)
In Bell v. Catalda, Justice Frank
stated:
• “A copyist’s bad eyesight or defective
musculature, or a shock caused by a clap of
thunder, may yield sufficiently
distinguishable variations [to be considered
original enough to be copyrighted]. Having
hit on such a variation unintentionally, the
“author” may adopt it as his own and
copyright it.”
Can “Dr. Nerd” Copyright . . .
• . . . a heretofore
undiscovered and
unpublished
manuscript of a
Shakespeare play
that he found while
exploring the
stacks of Mullen
Library?
Exact Copies
• Arthur, a forger,
creates an exact
reproduction of
Rembrandt’s 1629
Self Portrait.
• Experts cannot
distinguish Arthur’s
copy from the
original
• Is Arthur an
“author” for the
purposes of
copyright?
2 requirements of originality
• What are they?
COPYRIGHTABILITY:
ORIGINALITY
REQUIREMENT
Two aspects:
• (1) independent creation
• (2) at least some minimal
degree of creativity
• See Feist, 499 U.S. 340 (1991)
– CB p. 75
Bleistein v. Donaldson
Lithographing Co. (1903) CB 33 (at
34)
• Personality always contains something
unique. It expresses its singularity even in
handwriting, and a very modest grade of art
has in it something irreducible which is one
man's alone. That something he may
copyright unless there is a restriction in the
words of the act.
Bleistein v. Donaldson
Lithographing Co. (1903) CB 33
•
Catalda (p. 54)
• '‘Originality [in the copyright]
context means little more than a
prohibition of actual copying. No
matter how poor the 'author's'
addition, it is enough if it be his
own.”
Jabberwocky
• WOULD “‘TWAS
BRILLIG AND THE
SLYTHY TOVES”
be copyrightable?
Copyright Office Regulation
provides that some works are
not copyrightable, including:
• “Words and short phrases, such as
names, titles, and slogans, familiar
symbols or designs, mere variations of
typographic ornamentation, lettering or
coloring; mere listing of ingredients or
contents.” – 37 C.F.R. § 202.1(a)
ANOTHER TYPE OF IP MAY
HELP HERE
• Trademarks
ORIGINALITY OF
LABELS/SLOGANS
• TO WHAT EXTENT
ARE THESE
COPYRIGHTABLE
• See Sebastian, Int’l v.
Consumer Contact
(D.N.J. 1987) (CBmp.
79)?
Magic Marketing v. Mailing Services
of Pittsburgh (W.D.Pa. 1986) CB p
79
• Do the envelopes at issue exhibit a
sufficient degree of creativity to be
copyrightable?
John Muller & Co. v. New York
Arrows Soccer Team, 802 F.2d 989
(8th Cir. 1986)
• See the logo at p. 81 of your casebook – is it
original enough to be copyrighted?
John Muller & Co. v. New York
Arrows Soccer Team, 802 F.2d 989
(8th Cir. 1986)
Earth Flag Ltd. v. Alamo Flag Co.,
154 F. Supp. 2d 663 (S.D.N.Y. 2001)