Class 5 Notes
Law 507 | Intellectual Property | Spring 2004
Professor Wagner
Copyright © R. Polk Wagner
Last updated: 4/10/2020 1:47:03 AM

1. Cleanup a) Types of Works b) Duration of Copyright
2. The rights of copyright owners.
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1. Literary works
2. Pictorial, graphic, sculptural works
3. Architectural works
4. Dramatic, Pantomime, and Choreographic
Works
5. Musical Works and Sound Recordings
6. Motion Pictures and A/V Works
7. Derivative works and compilations
• Roth Greeting Cards (1970) o Artwork: ©, but not infringed o Text: not ©
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• 1909 Act: 56 total years (renewal at 28)
• 1976 Act: Life of the author + 50 years; 75/100 for entity authors
• 1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors
Eldred v Reno : challenge of 1998 CTEA
• “limited times” as a limit on Congress o History & text suggests “limited” is interpreted by Congress
• 1st Amendment as requiring heightened scrutiny o Not unless “traditional” boundaries of © are altered
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The exclusive rights of copyright owners:
1. The right to make copies
2. The right to make derivative works
3. The right to distribute copies
4. The right to publicly perform or display
5. (Moral rights)
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Basic components of copyright infringement:
1. Copying
2. Improper Appropriation
Arnstein v Porter (2nd Cir. 1946)
• What evidence is necessary to show copying ?
o Direct evidence? o Circumstantial evidence?
– Note the sliding scale analysis . . . o Is intent an element of copying? (Or of infringement?)
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Nichols v Universal Pictures (2nd Cir. 1930)
• What test does the court use?
• Note the 9th Circuit analysis: o Objective test: sort out the © from the rest o Subjective test: analyze similarity of © parts
How much must be taken to infringe?
What is the proper standard by which to analyze similarity?
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Steinberg v Columbia Pictures (SDNY 1987)
• Why doesn’t the court separately analyze copying and improper appropriation?
o Recall . . . circumstantial evidence of copying:
– Access
– Similarity
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Anderson v Stallone (CD Cal 1989)
• Why is Anderson’s work a derivative work?
• Can Anderson keep the copyright for the non-copied portions of the work?
1. Do we need to protect derivative works?
(Won’t standard infringement suffice?)
2. Does the derivative work right create incentives? (Good or bad?)
3. Why allow Stallone to take Anderson’s entire work?
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17 USC 106(3):
© owners have the exclusive right to distribute their works
Important limitation: first sale doctrine (FSD)
• The FSD allows a lawful owner of a particular copy to determine what happens to that copy
• Typically the copy must stay in the same form
Consider:
• Does the FSD swallow the distribution right?
• Is this right necessary? (Won’t distribution infringe the right to make copies?)
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Public performance:
• if it moves (movies, plays, dances, readings, etc.)
• Making the work perceivable
Public display:
• if it is still (photos, paintings, sculptures, etc.)
• Display is allowed “where the copy is located”
Note: no public performance rights for analog sound recordings (but a right in the musical compositions)
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What is “Public”?
• Open to those beyond family and social acquaintances
• Any sort of broadcasting
Limits on Public Performance/Display Rights
• Public interest exceptions
• Compulsory licenses
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Visual Artists Rights Act of 1976:
• Right to claim authorship
• Right to prevent use of artist’s name
• Some rights related to modification/destruction
Note that other theories (trademark, etc.) are also used to try to establish moral rights
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