Copyright Basics - Fixation, Originality, Originality in Derivative works

Question 1

What does copyright law provide protection for?

Answer 1

Protects original works of authorship that are fixed in a tangible medium of expression.

Question 2

What exclusive rights does copyright protection provide?

Answer 2

*Make Copies
*Distribute Copies
*Make adaptations of work
*Publicly perform the work
*Publicly display work
*Perform via digital transmission

Question 3

Generally, what is the length of copyright protection?

Answer 3

For the life of the Author plus 70 years

Question 4

In simple terms, what are the 2 fixation requirements for copyright?

Answer 4

1. Embodied in a tangible medium and
2. For more than transitory duration

Question 5

What is the definition of “fixed” under 101?

Answer 5

“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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

Question 6

What is the rule for fixation related to live performances?

Answer 6

“A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”

Question 7

In more complex terms, what are the 2 requirements for fixation under 101?

Answer 7

The work must be:

1. Embodied by or under authority of the author; and
2. Is sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Question 8

What are “copies” for purposes of fixation?

Answer 8

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Question 9

What are phonorecords for purposes of fixation?

Answer 9

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

Question 10

what is the subject matter of copyrights in general under 102?

Answer 10

102(a) - 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. Works of authorship include the following categories:
1. Literary Works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings; and
8. Architectural works

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.

Question 11

What categories are included as “works of authorship” under 102 subject matter of copyrights?

Answer 11

1. Literary Works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings; and
8. Architectural works

Question 12

What does copyright protection for an original work of authorship NOT extend to under 102(b)?

Answer 12

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.

Question 13

What is the constitutional basis for the fixation requirement?

Answer 13

Article 1, Section 8, Clause 8 - Congress has the power “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”.

Question 14

What did the court in Kelley v. Chicago Park District say was the policy reasoning for having a fixation requirement?

Answer 14

1. Easing problems of proof of creation and infringement
2. Providing the dividing line between state common law protection and protection under the federal copyright act
3. Judicial efficiency (higher threshold)
4. Help promote progress (people will have access to the work)

Question 15

In Cartoon Network, what did the court say about Buffering meeting the “embodiment” requirement for fixation?

Answer 15

Buffering is sufficient to meet the embodiment requirement because the buffer copies through the entire work, piece by piece.

Question 16

In Cartoon network, what did the court say about Buffering meeting the “duration” requirement for fixation?

Answer 16

Court says 1.2 seconds is not sufficiently permanent to satisfy the duration requirement of fixation. If the work was not “fixed” in the buffer, then the data in the buffer is not a copy because it must be sufficiently permanent to permit the work to be perceived, reproduced, or communicated.

If any amount of time counts, no matter how trivial, then the duration requirement wouldn’t be feasible/work.

Question 17

What did the court in Williams Electronics v. Artic hold regarding fixation in video games/interactive devices?

Answer 17

Court held that images are still fixated on the ROM chips and the work is sufficiently permanent. Confirms that works can be fixed on flash memory (or similar) that must be processed before it can be perceived by humans (and that fixation is changing with changing tech).

Even though presentation might change, player interaction differs during play mode, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and may aspects of the display remain constant regardless of how it is controlled. Plus, the other mode, attract mode, always stays the same.

Question 18

In the MAI systems case cited in Cartoon Network, what did the court say about RAM satisfying the duration requirement of fixation?

Answer 18

Even though it is only in the RAM for a few minutes, it is sufficient to satisfy the duration requirement.

Question 19

What is the general takeaway from Cartoon network on the duration requirement for fixation?

Answer 19

A few minutes would be adequate for fixation (RAM in MAI case), but a few seconds is not sufficient.

Question 19

What does 102 say about originality?

Answer 19

A copyright subsists in original works of authorship.

Question 20

What are the two implications of 102 on Originality?

Answer 20

1. Work cannot be copied from another - some portions must be made from “scratch” (except for derivative works)
2. A work must display a “modicum of creativity”

Question 21

Does a copyright protect every part of the work?

Answer 21

No. Protection only extends to those components of the work that are original to the creator.

Question 22

What are elements of a work that are unprotected?

Answer 22

*Scenes a Faire - Sequences of events that necessarily result from the choice of setting or situations
*Stock themes or stock settings that often arise in works of a particular genre (e.g. the use of a police care chase in an action movie).
*Individual words and short phrases also generally lack originality

Question 23

What are the two implications for Originality from the Bleistein case?

Answer 23

1. Independent Creation - At least some aspects of the work must be original. **if 2 people create the exact same work (no difference at all), but they did it entirely independently, then they can both get copyrights so long as the subsequent creator did not copy the prior work.
2. Modicum of Creativity - Extremely low bar, even a small amount will satisfy. Won’t satisfy if the creative spark is utterly lacking or so trivial as to be virtually nonexistent.

Question 24

What is the implication for the substantial similarity element of copyright infringement from the Prunte case?

Answer 24

Elements that aren’t protectible cannot be the basis for substantial similarity.

Question 25

What did the court in Mannion v. Coors say about the previous standard for originality in photographs?

Answer 25

Prior cases cited selection of film, camera, lens, and filter as things that make a photo original, BUT the court here says the photographer making these choices is not sufficient to make a photograph original.

Court lays our 3 ways a photo can be original that are not mutually exclusive: Rendition, Timing, Creation of the Subject.

Question 26

What did the court in Mannion v. Coors hold regarding originality and the photograph used?

Answer 26

Court held the photograph that was copied was protectable because the author changed the lighting, etc. What is protected is the photographers expression, not the actual thing in the image itself.

The photo was sufficiently original to warrant protection because plaintiff had originality in rendition and creation of the subject - in the whole of the image (bc creation of the subject), not its individual components.

Question 27

What are the 3 elements/types of originality in photography that satisfy the originality requirement?

Answer 27

1. Rendition
2. Timing
3. Creation of the Subject

Question 28

How is originality in photographs shown through Rendition?

Answer 28

*The effects produced by the angle, light, shade, exposure, technique, etc. (not lens/filter selection).
*Choices that are made in the production of the photograph - technical differences.
*How it is depicted
*In rendition and timing, it is the nature of the photograph itself, and not the subject matter, that gives rise to the originality.
*unless a photograph totally replicates another work, it will have at least somewhat original rendition.

Question 29

How is originality in photographs shown through Timing?

Answer 29

Right place, right time - originality shown in determining when to take the photo. Someone copying the exact same scene at the same time may or may not infringe.

Timing is limited by the principle that “copyright in a photograph ordinarily confer no rights over the subject matter.

*In rendition and timing, it is the nature of the photograph itself, and not the subject matter, that gives rise to the originality.

Question 30

How is originality in photographs shown through Creation of the Subject?

Answer 30

To the extent that a photograph is original in the creation of the subject, copyright also extends to that subject. Thus an artist who arranges and the photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium.

This is the broad one. This one is more likely to get you a copyright in the whole image. If your images originality is in rendition and timing only, then you will only get originality as to the rendition and timing (copyright will only protect the image and not others from photographing the same object or scene).

The photographer creating the scene, making judgements

Question 31

What is a “derivative work”?

Answer 31

A work based upon one or more preexisting works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a derivative work.

Question 32

What is a “collective work”?

Answer 32

A work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

Question 33

What is a “compilation”?

Answer 33

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.

Note: Factual compilations are subject to thin copyrights - i.e. infringement will only be found based on literal or nearly literal copying.

Question 34

What does 103 provide about originality as to the Subject matter of copyright in Compilations and Derivative works?

Answer 34

103(a) - The subject matter of copyright as specified by 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.
***note - this is the “forfeiture provision” because it says that creators of unauthorized derivative works forfeit copyright in any of their own creative contributions to the work. If the author can isolate some part of her work that doesn’t make unauthorized use of the prior work, she can preserve copyright in that part. Otherwise, her work falls into the public domain.

103(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 doesn’t 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.

Question 35

What is the rule on different mediums in derivative works as it relates to originality from the L. Batlin & son case?

Answer 35

The work was not protected because it did not add nontrivial variations to what already existed in the public domain. The mere reproduction of the work in a different medium was not good enough. There must be substantial variation, not trivial variation.

Putting a public domain work in a different medium doesn’t make it sufficiently original to warrant copyrightability. Copyright only extends to new expression that was added and the variation must be more than trivial

Question 36

What is the constitutional basis for the Fixation requirement?

Answer 36

Art. 1, Sec. 8, Cl. 8. - Congress has the power “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”