Copyright Up through Quiz Flashcards
What does copyright versus patent versus trademark protect?
Copyright protects creative and artistic works; patent protects inventions, processes, methods; trademark protects product identifiers (e.g., names, logos, slogans)
Is novelty required in copyright?
No. If two people write the exact same thing, each may receive copyright protection so long as each independently created it (with creative spark).
A work may be original even though it closely resembles other works (not novel) so long as the similarity is fortuitous, not the result of copying.
Example: Neither poems are novel (someone else wrote same one) but both poems copyrightable.
Is Copyright tangible or intangible?
Intangible, however, it can be embodied in a physical form
What category of subject matter is software categorized under?
A literary work
NOTE: Literary works include computer programs in source code and the software in a ROM chip in the computer
Why can’t facts be copyright?
No originality, because copyright extends only to the “authors” of “writings” and the author did not author the fact
NOTE: If you write non-fiction book, your expression is the protected work. The facts are not protected; this is why courts call it ‘thin’ copyright. Third parties can copy the facts freely.
Where does the Constitutional authority for copyright exist?
Article I, Section 8, Clause 8
What is the Constitutional Clause regarding Intellectual Property?
“Congress shall have 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.”
What are the four theories of copyright law?
Economic Theory
Labor Theory
Personality Theory
Interest Group Theory
What is the Economic Theory and what are some counterarguments to it?
Copyright is necessary to provide authors with incentives to create works, because without protection, others could copy and sell the work without payment to authors.
However, increased protection reduces access, raises the cost of the work to consumers, and there is limited data regarding how much incentive is optimal
What is the Labor Theory and what are some counterarguments to it?
Copyright law rewards authors for their creative labor. Based on natural law. However, could result in perpetual copyright.
What is the Personality Theory?
Copyright law protects artist’s personal connection to the creative work; the work is bound up with the creator’s identity.
However, this theory does not address primarily commercial works.
What is the Interest Group Theory?
Copyright law protects the interests of the copyright industries. These industries are wealthy, focused, and organized whereas consumers are passive and disorganized.
However, this is a highly descriptive theory and provides little normative guidance.
What is the general rule on originality and the two subset requirements on originality?
“Copyright protection subsists in original works of authorship fixed in any tangible medium of expression.” (102a)
Originality requires both:
(1) Independent creation (work originated with the author); AND
(2) Minimal creativity (some “creative spark”)
- NOTE: Term “originality” is NOT in the Constitution; HOWEVER, originality IS a Constitutional requirement by use of the word “authors” and “inventors” and “writings” and “discoveries”
How are photographs handled under copyright law?
Photographs CAN be copyrighted if the photo is original:
(1) Independent creation; AND
(2) Minimal creativity
Works are NOT copyrightable if no expression apart from the raw facts.
- Authors are not limited to books
- As long as a photo has some degree of creativity and independent creation, it can be CW
- A photo may lack originality and are thus not per se CW
- To the extent a photograph reflects the photographer’s decisions regarding pose, positioning, background, lighting, shading, and the like, those elements can be said to “owe their origins” to the photographer, making the photograph copyrightable, at least to that extent
- Example: If just a simple copy of the photo, infringement
- Example: If second artist inserts creativity, CW
NOTE: Same applies to sound recordings; second version must have change in expression
How are advertisements treated under copyright law?
Advertisements ARE protected by CW so long as originality requirements are satisfied (e.g., circus poster)
How is effort treated in copyright law?
It is irrelevant. Per Meshworks v. Toyota, where Meshworks created wire frame digital models of Toyota cars, the court held that the wire frame models were NOT original, because the point of the work was to create “a faithful copy” of a Toyota car.
- NOTE: Independent creation satisfied; however, creativity NOT satisfied. Thus, originality not met
- NOTE: The artist (Meshwerk) set out to not be original and instead to copy Toyota
- NOTE: Irrelevant that Meshwerk work required a lot of work and effort
- NOTE: Sometimes the factor of INTENT can help show that there was no creativity (intent to copy original)
What is the old theory/law/rule regarding originality?
The “sweat of the brow” theory
How are Compilations of Facts treated in CW law and what occurred in Feist phone listings case?
- Facts are NOT protectable by copyright
- Compilations of facts MAY be protected by copyright
- NOTE definition of compilation of facts that is CW: “Formed by the collection and assembling of preexisting materials of data that are are selected in such a way that the work as a whole constitutes an original work of authorship”
- NOTE: In Feist, Feist copied 4,000 of Rural’s phone numbers in listings and Rural sued for copyright infringement.
However, the Court held Rural’s phone listings did NOT exhibit originality. Rural exhibited NO creative selection (all the phone numbers simply picked out), and NO original arrangement (phone numbers listed alphabetically). Thus, Rural’s compilation of facts was NOT original and therefore no infringement existed. Feist not liable.
What are the three requirements for a Compilation of Facts to be copyrightable?
Compilation of Facts are copyrightable if:
(1) Collection and assembly of pre-existing material, facts, or data;
(2) Selection, coordination, and arrangement of those materials; AND
(3) Creation, by virtue of the particular section, coordination, or arrangement, of an “original work of authorship”
In shorter terms, Compilation of Facts are copyrightable only if they exhibit creative selection and arraignment.
NOTE: The CW will extend only to the creatively selected and arranged expression. In no event may copyright extend to the facts themselves.
Example:
Compilations of facts are NOT copyrightable if there is:
(1) NO creative selection (e.g., original author simply picks out all the phone numbers); AND
(2) NO original arrangement (e.g., original author simply lists phone numbers alphabetically).
Example: No copyright for calendars, height charts, schedules of events, tables/lists taken from public documents or other common sources)
Examples of non-CW items:
- Product catalogs listing products alphabetically by manufacturer and model number
- Daily stock market prices listed by company name or symbol
- Compilations of real estate sales listed by month and street address
- List of hotels in a city listed alphabetically and showed room rates
How would you analyze for and against copyright protection of the Westlaw database (a compilation of facts)?
For copyright protection: Westlaw creatively selects and arranges the opinions by adding their own headers.
Against copyright protection: Westlaw did not write the opinions and government opinions (judge’s writing) are not copyrightable because government works are not copyrightable.
How are “created” facts treated in copyright (e.g., survey lists on restaurants, blue book car prices, US News lists)?
- Can go either way but probably protectable as a compilation
- To extent the created facts reflect creativity and opinions, yes, copyrightable
How are Fictional Works of History treated (e.g., fiction book that contains history)? Briefly summarize the Nash v. CBS case.
The fictional idea on how history really occurred is NOT copyrighted.
Nash asserting part of his book was fact causes him to lose some CW protection (whereas Harry Potter is total fiction so receives total CW).
In Nash v. CBS, where CBS used in its TV show Nash’s idea from his fictional book about how John Dillinger really died, the court held CBS did not infringe on Nash’s copyright because CBS only used facts and ideas from Nash’s book. “The first person to conclude Dillinger survived does not [own] history.”
Example: Book containing true revelations from God could be treated as fact and thus no CW exists.
Define sound recordings in copyright law.
“Works that result in the fixation of a series of sounds but not including the sounds accompanying a motion picture or other audio visual”
NOTE: Sound recording includes bird calls, spoken words, whale calls, etc. (not just limited to music)
NOTE: Sound recording of music creates TWO kinds of copyrighted work (1) musical work, and (2) sound recording.
Example: Song performed by artist creates musical CW, then variation of song by different artist creates sound recording
NOTE: Sound recording contains variations in production (echo, effects, equalization) so creates separate CW
Example: Author doing audio version of book (2 CWs): Literary work and sound recording. Same person likely does not own both copyrights.
What are the six exclusive copyright ownership rights?
(1) Reproduce the copyrighted work in copies or phonorecords;
(2) Prepare derivative works;
(3) Distribute copies for sale;
(4) In the case of all works except sound recordings, Perform the work publicly
(5) In the case of all works except sound recordings, Display the work publicly; AND
(6) For sound recordings only, Perform the work publicly via digital transmission.
NOTE on Infringement Examples:
- Distributing copies to public w/o permission from owner
- Publicly perform or display a song w/o permission from owner
Define the public performance exception for sound recordings.
XXX
Define phonorecord.
A copy (physical form) of a sound recording.
What is the difference between an idea and an expression in copyright law?
An idea can never be protected. An expression CAN be protected.
How does the law treat a book that describes inside the book a system or method? Also, briefly summarize Baker v. Sheldon.
The book is CW; however, the system/templates/forms inside the book are NOT CW (would require patent protection).
Baker v. Sheldon
Sheldon wrote book describing double-entry bookkeeping and included forms and templates inside book. Baker copies forms/templates only (no explanatory text) and Sheldon’s estate sues Baker for copyright infringement.
Issue: Does CW protection for a book explaining a system on bookkeeping prevent others from using the system or the forms incidentally used?
Rule: A book does NOT give its author right to exclude others from practicing what is described in the book. Note that the explanatory text/expression WAS CW but the actual empty forms/templates had no protection.
What important dichotomy was introduced via Baker v. Sheldon?
The idea-expression dichotomy where an idea (e.g., bookkeeping) cannot be copyright; however, the explanatory expression CAN be protected. Exclusive rights to a “useful art” described in a book is only available by patent.
Baker copied only the SYSTEM of accounting, which is not subject matter available for copyright protection.
NOTE: If student copies ideas from a paper, there is no CW infringement because CW does not protect ideas but there would be a plagiarism charge.
What are two defenses available to defendants in a copyright infringement lawsuit?
(1) Blank Forms Doctrine
(2) Merger Doctrine
Define the Blank Forms Doctrine.
Blank Forms with no original elements are NOT subject to copyright.
Examples of Blank Forms
- Time cards, account books, bank checks, scorecards, address books, report forms, order forms
- TEST: Anything that is designed to simply RECORD information cannot be protected.
- NOTE: This is a DEFENSE to copyright infringement.
Define the Merger Doctrine (which is an exception to the rule that expression can be copyrighted).
The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted.
In other words, if there is only one expression available of something, the expression cannot be copyright.
- NOTE: This is a DEFENSE to copyright infringement.
What is the test for the Merger Doctrine?
Would protection of the work monopolize all the available expressions (only one) of the idea?
Example: The phrase “Cain slew Abel” is an expression however there is only one way to say it, it should not receive protection otherwise the the protection would monopolize all available expressions of the idea.
Example: Kissing of spinx image. Same as above. No protection. Only one way to express it.
NOTE: In Morrissey vs. P&G, Morrissey owned CW on a set of sweepstake rules/contest collecting customer data. P&G used same sweepstake form. Morrissey sues. Court holds no infringement, expression and idea have merged and only one way to express the sweepstakes form. Cannot monopolize sweepstakes. Blank forms doctrine would have also applied.
NOTE: In Herbert Jewelry v. Kalapakian, suit Jewelry store sues K for infringing CW of a pin in the shape gold bee encrusted with jewels. Court rules no infringement due to merger doctrine; idea and expression are inseparable.
Do recipes receive copyright protection?
A barebones recipe does NOT receive copyright protection whereas those that convey more than simple directions for making a dish may receive protection, but the recipe should be tested.
Does the list of ingredients in a recipe provide copyright protection?
No. Ingredients are a fact or a system or method, which do not receive CW protection.
Does a description of steps in a recipe receive CW protection?
No. A description of steps is a process, and processes do not receive CW protection.
Do pictures of cooking techniques or of final dishes in a cookbook receive protection?
Yes, so long as the picture fulfills originality requirements.
Does the description of a history of the dish receive protection?
The description is expression and is protectable. The actual history is facts and is not protectable.
In what context is the Abstraction Test used?
Courts use the Abstraction Test to determine the similarity between two works.
NOTE: Helps identify the distance between the idea and expression. How similar does it have to be constitute infringement?
NOTE: The abstraction test is most frequently used to detect copyright infringement of software.
Define the Abstraction Test
- Upon any work, …. a great number of patterns of increasing generality will fit equally well, as more and more of the details are left out
- The last may perhaps be no more than the most general statement of what the play is about…there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’ to which, apart from their expression, his property is never extended.
- Nobody has ever been able to fix that boundary, and nobody ever can
(Nichols v. Universal Pictures where court held no infringement existed because Universal Pictures only used the same general plot idea which cannot be protected)
- If the similarities are only abstract ideas, no infringement.
- NOTE:
1. General plot ideas cannot be copyrighted (e.g., an idea that some families don’t get along after kids fall in love)
2. Infringement would require more similarities than at just an abstract level. Can’t state the barebones plot in five words and then sue the person who writes similar plot.
NOTE:
- Just break down the components and compare them. Farther up you go in logic the more abstract the less likely infringement exists.
- In Nichols v. Universal Pictures, Nichols makes play about two Irish families.
- Universal Pictures makes movie about two Irish families.
- Nichols sues Universal.
- However, Universal’s movie had substantial differences from Nichols’ play.
- Issue: Did movie infringe on play due to similarities in plot and high level characters?
- Holding. No. Though in some cases, can be infringement.
- Here, ONLY the general plot idea was copyrighted.
- NOTE: There is NO predetermined formula for when plots are too similar. Very fact specific inquiry.
- For example: Texts (protected). Specific scenes (protected). Subplots, characters (less protection). Plot outline (highest level of abstraction)(not protected, merely an idea).
What is the general rule regarding copyright protection of characters?
Characters do not receive copyright protection unless they are fully fleshed out (distinctive look) and carefully delineated.
NOTE: Everyone must know what character looks like and may be able to predict character responses.
Note on Policy Rationale: Do not want to stifle creativity by giving out to much character protection.
NOTE: Hard to receive protection in literary since readers form their own mental image of what characters look like. Much easier to receive protection for movie characters (e.g., James Bond) or cartoon characters (Batman).
Example: Mickey Mouse is drawn consistently; character has CW protection
What four steps would you take to analyze whether one form infringes on another form?
Step One: Compare two forms and look at differences between them.
Step Two: First form is only copyrightable if it satisfies originality (independent creation plus creative spark)
Step Three: If satisfies originality, apply both the Merger Doctrine defense.
NOTE: P who is suing for infringement will say there are multiple ways of expression and that there was no merger and there should thus be protection. For instance, the gardening template is very vague, it is not super specific to where they monopolized all forms of expression. D who is being sued for using the form will say that P used the only type of form/expression available, P monopolized, thus, merger applies and D is covered and they are not liable.
The narrower the concept, the more likely court will find merger doctrine applies.
Step Four: If it satisfies originality, D will also try the Blank Forms defense, arguing P merely provided a blank form, there was no expression, and systems (e.g., bookkeeping template) cannot be protected under copyright law.
NOTE: On exam, argue both sides.
What are the two types of legal documents up for discussion in copyright law?
- Transactional documents
- Litigation documents
Between transactional and litigation documents, which are more likely to receive copyright protection and why?
Litigation documents because litigation documents exhibit more creativity than transactional documents. Transactional documents are ‘rights-creating machines’ that are less creative. For instance, language in mortgage docs is not creative and copied from doc to doc. Also, transactional docs are using the same case law/rules so no creativity. Mortgage docs use the use vs. expression dichotomy, you may copy the mortgage doc for use
Is software protected?
Yes, as a literary work.
Can an operating system be protected?
Yes, absolutely, operating system is software and is CW.
Note: User instructions not CW.
Note: Court does not recognize a distinction between source code and object code.
Note: Fixation is fixed in the ROM drive.
Is a computer menu command hierarchy copyrightable?
No. A computer menu is not copyrightable because it a method of operation. Copying the words and structure of a command hierarchy is not CW (because menu is a system or method of operation)
What is the general rule on the utilitarian aspect of useful articles?
“Design of a useful article….shall be considered a PGS work… only if….features can be identified separately… and are capable of existing independently of, the utilitarian aspects of the article.”
A useful article on its own–its utilitarian aspect–CANNOT be protected by copyright.
NOTE: In the past, Copyright Office used to prohibit protection of any useful articles.
Example: Plastic pig nose is NOT a useful article because it was only designed for an appearance. Pig nose has CW from the start.
Example: Halloween costume IS a useful article because it has the use of clothing. Thus, it can only be CW IF there is a showing of separable authorship.
Example: Toy airplane IS a useful article.
When does separability exist?
Separability exists when the object has features that can be identified separately… and are capable of existing independently of, the utilitarian aspects of the article.
[Separate from any underlying utilitarian function]
What is the two step approach in useful articles and PSG?
- Is it useful? If so, no CW unless
- Does design incorporate PGS features that can exist on their own? If so, CW.
Example: Mannequins
(1) Yes, useful articles.
(2) No, mannequins are not sculptures with aesthetically separable features or those that can exist independently from its function as a mannequin.
Answer: No CW.
