Copyright General Flashcards
§101: Fixed in a tangible medium of expression
(1) embodied in a copy or phonorecords (2) by or under the authority of the author (3) in a sufficiently permanent or stable state as to permit it to be perceived, reproduced, or otherwise communicated (4) for a period of more than transitory duration
§102(a) Requirements for copyrightability
17 U.S.C. 102(a) Copyright protection subsists, 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
Williams Electronics, Inc. v. Artic International, Inc.
3d Cir 1982
Idea: Consistent Perception = fixation
Video games are in a sufficiently permanent and stable state such that they are fixed and therefore eligible for © protection. The memory device in the game made the display and play modes of Defender repetitive enough to be fixed.
“The fixation requirement was met if the work was sufficiently permanent or stable to permit it to be reproduced for more than a transitory period.”
102(a) originality
Copyright protection subsists, in accordance with this title, in original works of authorship [that are] fixed in any tangible medium…
-US Copyright law has always required originality, but not expressly because not defined in Act
Burrow-Giles v. Lithographic Co. v. Sarony
US 1884
A photograph is an original work here, because the subject, Oscar Wilde, was posed, the scenery and lighting were arranged. Lighting, costume, pose, and composition all make the work original sufficient for copyrightability. Work is embodiment of original conception.
• Test: The findings showed the photograph to be an original work of art, the product of intellectual invention, of which the photographer was the author, and belonging to a class of inventions for which the Constitution intended that Congress should secure to the photographer the exclusive right to use, publish, and sell.
Bleistein v. Donaldson Lithographing Co.
US 1903
A circus advertisement is protected and copyrightable i.e. original. The composition of that ad cannot be copied, but the pictures used in it can. © protects the person’s reaction and interpretation.
-Bleistein Non-discrimination standard: Judges should not be in the business of evaluating works for artistic merit
Free to copy the original but cannot copy the copy (original being a person or a nature scene)
Feist Publications, Inc. v. Rural Telephone Service Co.
US 1991
Feist copied listings in Rural’s (π) phonebook to make his own. Facts are not copyrightable, but compilations of facts generally are if they are arranged in a nonobvious way, because © protects the expression, not the idea. Yellow pages more copyrightable than white pages because they require some originality in how they are arranged. All that is required to satisfy the originality requirement is 1) independent creation and 2) some minimal degree of creativity
• The copyright protection in compilation of facts are thin A subsequent compiler remains free to use the facts. Contained in another publication so long as it does not feature the same selection and arrangement • But not merely ○ Sweat of the brow Garden variety output
Mannion v. Coors Brewing Company
SDNY 2006
Kevin Garnett Athlete photo with clouds. Protection of the work derives not from the work that went into creating it, but from the features of the work itself based on:
(1) Rendition: How the subject is depicted (lighting, angles etc.) (2) Timing: Right place right time is less copyrightable than waiting for a precise moment (if you waited 6 hours to get a shot of the sunset vs. you just happened to be at that cliff when the sunset looked like that). (3) Creation of the subject: Posing the subject, telling them what to do
Meshwerks, Inc. v. Toyota Motor Sales USA
10th cir 2008
Digital models of a pre-existing car are not copyrightable because they were specifically meant to copy the cars exactly, not to add anything to them creatively. Neil Gorshuch says what needs to be filtered out is the entire car, and once you do, scans are NOT original works of authorship. Are the cars a fact? Yes.
“The fact that a work in one medium has been copied from a work in another medium does not render it any less a copy”
§102(b) - what is not copyright eligible
Copyright does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries
-Purpose of 102(b):
Maintains distinction between what is in the public domain and what is not
Maintains distinction between copyright/expressive subject matter and patent/functional subject matter
Baker v. Selden
US 1879
○ D did not violate copyright by using account books with columns and headings similar to those explained in the copyrighted work
○ Subject of the litigation was a book that outlined a peculiar system of book-keeping
The Court drew a distinction between an author’s original writing, which was a valid subject of copyright, and the art or practical knowledge explained by the writing, which generally was considered to be community property and was the subject not of copyright but of a patent if completely original to the author.
• Class ○ Two possible holdings § Forms not copyrightable at all; they are a "system" § Forms may be copyrightable, but use of the system requires using forms □ In this case you have to ask to what degree of necessity is present for the form and the system in order to help advise a client
Merger Doctrine
• Merger doctrine
Where only one or a limited number of ways exist to express an idea, the idea and expression merge and copyright cannot be used to prevent another form using the same or similar expression
AA Hoehling v. Universal City Studios, Inc.
2d Cir. 1980
Wrote a book about a theory of the Hindenburg’s destruction. A similar book was optioned for a movie by Universal (∆). Hoehling’s theory is not copyrightable material under 102(b) because facts are not copyrightable (“discoveries” under statute)
In the case at bar, the Court concluded that appellant’s story was based on historical interpretation, which was not protected by appellant’s copyright
Scene a faire
Elements of a subject that must be used in order to recognizably talk about that subject. Stock occurrences of culture are not copyrightable. “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic”
ATC Distribution Group, Inc. v. Whatever It Takes Transmission & Parts Inc.
6th Cir. 2005
Car parts manual. The numbering taxonomy was not copyrightable, but the decision to make a specific part a specific number was ≈ Feist. Similarly, dental codes in ADA were copyrightable, but the decision to use the codes was not.
• Class Difference of opinion on what is creative enough to allow a taxonomy protection
101 useful article
Useful article: An article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful articles is considered a UA. If NOT a useful article, do not have to go to separability.
Mazer v. Stein
US 1954
Lamp base (functional) also sold as statue (creative expression) sold by π as both and ∆ copies. Infringement because the lamp base dancing figure is copyrightable as a work of art (Bleistein non-discrimination standard: judges won’t decide the merit of the artistic work)
The subsequent use of a copyrighted work of art in the manufacturing of lamps did not affect respondents’ right to be protected against infringement of the work of art itself.
Star Athletica, LLC v. Varsity Brands, Inc.
US 2017
Are the decorative elements on cheerleading uniforms copyrightable separate from the uniforms themselves? YES.
“We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature 1) can be perceived as a two or three dimensional work of art separate from the useful article and 2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article”
Three frames of copyright law
○ Economic policy
○ Moral entitlement
Speech policy
• Economic ○ Want to give property rights to incentivize creation of IP ○ Problem: not overconsumption but underproduction of creative works ○ "to promote the progress of Science and Useful Arts" ○ Utilitarian • Moral entitlement ○ Sacred bond between the author and work Locke -- natural right to the labor of one's body
101 Derivative Work
Derivative work: A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
103(b) protection in derivative work and compilations
Copyright for a compilation or DW only extends to the material contributed by the author of such work, as distinguished from the pre-existing 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. 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.
-A DW © holder cannot claim © in the first-existing work, and the © owner of the first-existing work cannot claim © in the DW, and the protection for the DW does not weaken the first-existing work author’s rights.
101 Compilation
A work formed by the collection and assembling of pre-existing material or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work.
L Batlin & Son, Inc. v. Snyder
2d Cir. 1976
Uncle Sam banks. Uncle Sam bank in public domain(A) and Snyder (∆/B) has copyright for metal bank. (C ) Batlin makes a plastic one. Batlin’s work does not qualify for copyright protection because it’s not sufficiently original under the Alfred Bell standard. DW’s do qualify for copyright protection when they contain substantial variations from the original. “To extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.”
○ Originality can not be shown through the need for physical skill or special training to create the work
• Class Court is using a test from Bell saying the author needs to contribute something "more than merely trivial"
Schrock v. Learning Curve International, Inc.
7th Cir. 2009
The threshold for originality is the same for the first work as it is for the DW. Schrock (C) took photos of toys for LCI (B). HIT (A) is the © owner of the toys. Are Schrock’s photos DW that qualify for copyright protection? YES. Note: triangle type of suit!
○ Test: 1) the originality requirement for derivative works is not more demanding than the originality requirement for other works and 2) the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way
CCC Information Services, Inc. v. Maclean
2d Cir. 1994
Maclean published a Red Book with predictions on used car valuations. CCC uploaded portions of the Red Book to its database and then averaged the valuations with that of the bluebook. Putting the Red Book into the database was copyright infringement because the ideas expressed in the estimates contained editorial opinion (professional judgment and expertise), not just facts.
Experian Information Solutions, Inc. v. Nationwide Marketing Services Inc.
9th Cir 2018
• Facts
○ Experian (P) compiles databases and licenses them
§ Compiled CVD database and has copyright registration for the selection, coordination, arrangement and compilation of the data
§ Contains consumer information as well as consumer predictions
§ The name and address data is very valuable and is a big $ maker
○ D acquired NCL database to resell data of ~200 million consumers
94% match rate between P and D databases leading P to believe the NCL database was stolen info
_______
Holding: Experian lists entitled to limited protection
○ 3 principles
1) Factual compilations are entitled to some protection as long as there is creativity in the selection, arrangement, or coordination of the facts
2) The creativity that suffices to establish copyright protection in factual compilations is minimal
3) Such compilations of factual information receive only limited protection
The process of putting the lists together requires some thought and creativity (also make effort to exclude some data based on elderly status or being incarcerated)
Court: this is not the simple replication of data as in Feist. This is not a 1-1 replication and P works to change the dataset to make it more reliable
Roth Greeting Cards v. United Card Co.
9th Cir 1970
Creative selection of individually uncopyrightable text/art can be protected as a compilation. Although individual greeting cards were not protectable, selection and combination of the cards in a set and as a whole, total concept and feel of the cards, is original and copyrightable.
○ Copyright protection is not available for ideas, but only for tangible expression of ideas Concludes each of Roth's cards, considered as a whole, represents a tangible expression of an idea and that such expression was, in totality, created by Roth
Satava v. Lowry
9th cir. 2003
Glass jellyfish. Both making glass sculptures of what jellyfish actually looks like. While a compilation of unprotectable elements may be copyrightable, they are not de facto copyrightable if it is not something more than a trivial variation. The elements of π’s artistry will be protectable, though thinly. Does not overrule Roth.
P has thin copyright on the specific way he depicted the jellyfish but not much more
2 types of authors
○ Initial Ownership: Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work
Works made for hire: the person whom the work was prepared is considered the author for purposes of the title unless other written agreements were formed
101 Joint Work
A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole
Lindsay v. The Wrecked and Abandoned Vessel RMS Titanic
SNY 1999
The author is the person with whom the original individual conception originated—therefore, Lindsay, the storyboard compiler, is the author of the film despite not going underwater to film it.
Erickson v. Trinity Theatre, Inc.
7th Cir. 1994
Theater members claim joint authorship with the playwright because of their contributions to a play, but their contributions were not independently copyrightable, so no joint authorship.
§ Goldstein test Requires that each effort can be considered copyrightable on its own
Aalmuhammed v. Lee
9th Cir. 1999
• Facts
○ P was asked to assist in preparation of Washington’s star role in Malcom X because P knew a great deal about Malcom X and Islam
§ Reviewed the shooting script for Pike Lee and suggested extensive script revisions
Most revisions were made to ensure the religious and historical accuracy
Requirements for joint authorship:
(1) A unitary whole/final work is copyrightable—movie and script here (Nimmer)
(2) Two or more authors each with an element of control (lacking for π)
(3) Intent to merge/create joint authorship—usually evidenced with a contract, absent here
(4) Each author’s contribution would be individually copyrightable (Goldstein; Erickson) –
16 Casa Duse, LLC v. Merkin
2nd Cir. 2015
• Facts
○ Appellant (Merkin) hired to direct a film based on the screenplay of a work called Heads Up
§ Merkin did not enter into a work for hire agreement with Casa Duse
§ Later entered into a “Media Agreement” under which Merkin would edit the film but not copy or distribute it
○ Krakovski began sending film to festivals and Merkin sent a cease and desist letter to Casa Duse
○ Parties agree Merkin is not a “joint author” or co-author
§ As such Merkin is contending copyright infringement… if he were a co-author than other co-authors cannot be an ingringer
Record establishes that Casa Duse never intended to share authorship of the film with Merkin or anyone else
Issue: May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone? NO
• Reasoning ○ While issues of "coownership" of a copyright may arise in the motion picture context, the question of separate contributions meriting separate copyrights as "works" ordinarily would not, unless the motion picture incorporates separate freestanding pieces that independently constitute "works of authorship" § In joint work, separate elements merge into a unified whole whereas in a collective work, individuals' contributions remain unintegrated and disparate ○ Court says authors of freestanding works such as dancers in a film may copyright their separate independent work (think of a dancer creating a dance) ○ Court further states that if the case were decided the other way, this would effectively give Merkin greater rights than a co-author as he could sue for infringement ○ Court moves to consider copyright interests in the raw film footage § Relevant authorship inquiry includes: decision-making authority, billing, and written agreements with third parties □ Casa duse exercised far more decision making authority □ Both parties indended to take credit -- billing = neutral consideration here □ Case duse executed all relevant third party agreements Case duse thus owns copyright in the film and its prior versions
CCNV v. Reid (US 1989)
The hiring party loses the right to control the product. Bronze nativity scene sculpture not a WMFH (meaning Reid is not an employee, so hiring party does NOT own) because doesn’t fall in enumerated §101(2) list. Creator retains © as author and owner.
○ Parties did not sign an agreement or discuss copyright
“the structure of 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and on for independent contractors, and ordinary canons of statutory interpretation indicate that the classification of a particular hired party should be made with reference to agency law”
101 work made for hire
(1) A work prepared by an employee within the scope of his or her employment; OR
(2) A work specially ordered or (9 enumerated types) …if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
EXCLUSIVE LIST
- Contribution to collective work
- Part of motion picture/other audiovisual work
- Translation
- Supplementary work
- Compilation
- Instructional text
- Test
- Answer material for test
- Atlas
JustMed(9th Cir. 2010)
Bryce working on code for software for JustMed. No contract, but software is different, not enumerated because statute predates software. Convention is that the creator is the author for software. But still found Bryce to be an employee. Court says ?
○ -Authorship vests in the party bearing economic risk (≈patent law)
§ -Otherwise, would have a million assignments a day which is not the case in patent
○ -Government works are never WMFH—no copyrightability, belongs to gov.
○ My notes
§ Court makes the key determination that Bryce was an employee of the company
○ Class § Put a lot of emphasis on being a startup and taking a practical approach to the fact that employees look different for a remote startup □ This case is taking a different read § The employment factors looked at in this case: □ contemplated duration of relationship □ Range of tasks Method of payment (salary)
Rest. 2d Agency §220
- Hiring party’s right to control manner/means of creation**
- Skill required**
- Source of the tools
- Location of the work
- Duration of the parties’ relationship
- Whether hiring party has right to assign additional work**
- Method of payment
- Hired party’s discretion over when and how long to work
- Hired party’s role in hiring and paying assistants
- Whether work is part of hiring party’s regular business
- Whether hiring party is in business
- Provision of employee benefits**
- Tax treatment of hired party**
Rouse v. Walker & Associates (S.D. Iowa 2007)
Court wants to admit into scope of employment, anything to make job go faster- fruits of coding skill to employer. Every big 10 school has written a policy similar to this one. Faculty usually retains copyright in books and articles so had to draft a policy to accommodate policy to be able to license and make a profit of software type disclaiming professors right.
○ In evaluating work made for hire the court looks to restatement 228 for 3 factors 1) is it the kind he is employed to perform 2) It occurs substantially within the authorized time and space limits 3) It is actuated at least in part by a purpose to serve the master
§106: Exclusive rights in copyrighted works
Owners of copyright have the exclusive right to do or authorize any of the following:
• Reproduce the work in copies/phonorecords
• Prepare derivative works
• Distribute copies/phonorecords to the public
• Perform the work publicly (certain works)
• Display the work publicly (certain works)
• Perform sound recordings publicly by digital audio transmission
§117 Limitations on Reproduction Right for computers and practical issues
Backup copies of computer programs. It is not an infringement for owner of copy of a computer program to authorize making another copy. If the copy is made by virtue of machine activation for the purposes of maintenance or repair, not infringement as long as:
(1) Such new copy is created as an essential step in utilization of computer program and used in no other manner; OR
(2) That such new copy is for archival purposes only and is immediately destroyed
- MAI
- Ex: When loading up a computer, you load up a licensed copy, not infringement
Elements of Infringment
Prima Facie Case
(1) Ownership of a valid copyright (not author but the owner; usually not at issue)
-Was the copyright valid given fixation and originality requirements?
-Just because © issued, doesn’t mean it is valid—valid until challenged otherwise
(2) Copying in fact (was there or was there not independent creation; copying v. access)
-Direct copying
-Or
-Circumstantial evidence =access to the copyrighted work + similarity between the two
(3) Improper appropriation of protected expression (that which is covered by the valid copyright)
(a) Exact copying
OR
(b) Substantial similarity- if similarities of facts, then not improper appropriation. Don’t focus on what’s been added, focus on what’s been taken.
Cartoon Network (2nd Cir. 2008) [copy issue]
Cablevision was live streaming shows in a buffer—one stream for audiences, and another for remote recording. But because the content didn’t stay in the buffer stream for more than 1.2 seconds, it was too transitory, and not enough to be fixed. Since it was not fixed, no copyrightable material was made and Cablevision can’t be liable for infringement.
Gottlieb(SDNY 2008)
Silver slugger pinball machine in movie (background). Has to be more than a de minimis copying to infringe. Merely using the work if the average observer can’t discern the protected elements of the work won’t be infringement. Not infringement. Recognizability is ultra-low.
-compared to Ringgold(2nd Cir. 1997): Picture on the wall of the picnic scene quilt was more than de minimis = infringement on reproduction right because there was “a qualitative connection between the poster and the show.”
Use of Silver Slugger was de minimis as a matter of law. No reasonable juror could find substantial similarity in the legal sense, and thus copying is not actionable
Three Boys v. Michael Bolton(9th Cir. 2000 S. Ct. 2001)
Isley Brothers/Love is a Wonderful Thing. Jury decides this was infringement. On appeal, not enough evidence that the decision was clearly erroneous because not as if a reasonable jury couldn’t find infringement based on the evidence.
Circumstantial proof of access. Absent direct evidence, need access + substantial similarity for copying in fact. Proof of access = opportunity to view, opportunity to copy, and there must be a reasonable possibility, more than bare possibility.
TY v. GMA(7th Cir. 1997)
Beanie babies case. 7th Cir. is basically contradicting itself. Bad law—didn’t read Selle properly, judge didn’t believe in idea of independent creation, so took proof of substantial similarity to be proof of access. Both are copies from the public domain, a pig.
-MUST prove access before proving SUBSTANTIAL SIMILARITY
Bouchat v. Baltimore Ravens (4th Cir. 2000)
• Prof says this is a case where you have a work sent to an organization
○ Practical problem where its hard to determine if this was a copy
○ Large organizations get unsolicited submissions a lot (think record companies)
• If you are a corporate entity who receives these submissions you need to ensure that you have a system and process for handling these things and keeping track
○ Also want to wall the receiving group off from the rest of the creative group to ensure there is not a problem that is created
Substantial Similarity (2nd Circuit)
Copying In Fact
- Resonable possibility of access
- Similarity (dissection okay, experts okay)
Unlawful appropriation
-Nichols: “series of abstrations” heuristic
-Armstein: “ordinary lay hearer” standard
(no dissection, no experts)
Substantial Similarity (9th Circuit)
Copying In Fact
- Resonable possibility of access
- Similarity (dissection okay, experts okay)
Unlawful appropriation (Cavalier)
- “Extrinsic” analysis (dissection okay, experts okay)
- “Intrinsic” analysis (ordinary observer)
Rentmeester v. Nike Inc. (9th Cir 2018)
○ Facts
§ P brought case for photo he took of Michael Jordan while at UNC before 1984
□ Depicts Jordan’s iconic Jumpman pose
□ P orchestrated the photo, pose, setting etc.
Pose considered unusual for basketball player
§ 2 part test (need both):
□ Extrinsic test
® Objective similarities of the two works
® Need to filter out the unprotectable elements of the work before analyzing (ideas, concepts, public domain, scene a faire)
□ Intrinsic test
Wholistic, subjective comparison of the works to determine if they are substantially similar in “total concept and feel”
§ P can only get protection on the way the pose was protected and expressed in the photograph
In this case, Rentmeester’s photo is undoubtedly entitled to broad rather than thin protection. The range of creative choices open to Rentmeester in producing his photo was exceptionally broad; very few of those choices were dictated by convention or subject matter.
-ebay v. MerExchange(S. Ct. 2006): [injunctive relief]
For injunctive relief need to show:
Plaintiff has to show:
- Irreparable injury
- Monetary remedies inadequate to compensate
- Balance of equities—considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
- No harm to public interest by enjoining the production of the infringing work
Warner Bros.(SDNY 2008)
Harry Potter Lexicon case. Warner Bros. is bringing this suit on Rowling’s behalf—she had intended to publish an HP encyclopedia. Fine when Lexicon (essentially encyclopedia of all HP) was online, but then author published it in print. Infringement? YES
Have to do a qualitative and quantitative analysis for infringement. Lexicon had a different purpose than film, despite similarity. Comprehensive non-literal similarity: no direct lifting of expression.
-Representing the original work vs. “giv[ing] the copyrighted material another purpose”
• Class
○ Court finds the defendant copied too much
§ opts for qualitative and quantitative analysis instead of ‘similar aesthetic’ test
○ Test for DW
§ Does it still “represent the original work”
OR does it “give the copyrighted material another purpose”
[SEE 2X2 CHART FOR THESE ISSUES]
-really turns on if it substitutes the original work in an economic sense (steals sales)
Micro Star v. FormGen (9th Cir. 1998)
Duke Nukem additional game levels has to access art library to function, but = derivative work under Samuelson rationale. What infringed was the story itself.
• “A book about Duke Nukem would infringe for the same reason, even if it contained no pictures…”
• Holding in Micro Star is that the MAP file is enough of a sufficient form for it to be fixed and count for DW
Samuleson rationale: Whether or not it is a derivative work depends on the extent to which it infringed on reasonably foreseeable markets for the original work.
DC Comics v. Towle (9th Cir 2015)
• Facts
○ Dealing with Batmobile
§ Batmobile was depicted in Batman
○ D (Towle) produces replicas of Batmobile as it appeared in the show and motion picture
§ Runs ‘Gotham Garage’ where he makes replicas of automobiles
§ Sells the cars to collectors
Also sells kits to let people modify their car to look like the batmobile
• Decision Batmobile has copyright protection ○ Court lays out a 3 part test
1) Character must generally have physical as well as conceptual qualities
2) Character must be sufficiently delineated to be recognized as the same character whenever it appears
3) Must be especially distinctive and contain some unique elements of expression
