1. Copyright Law Class 3 Works of Authorship

2. Copyright Law – Class 3 © 2011 Anne S. Mason Review Subject Matter: Original works of authorship fixed in any tangible medium of expression… Must draw distinction between the material object in which it is embedded and the copyright = they merge through fixation. Material objects under the Act are phonorecords (in which sound is fixed) or copies (in which the rest of works of authorships reside). Performance is not fixed - so for protection, a performance must be simultaneously recorded.

3. Copyright Law – Class 3 © 2011 Anne S. Mason Idea/Expression Dichotomy Cannot copyright idea. Where the expression of the idea is such that if people build on that expression or practice what the expression teaches and infringe, the idea is intertwined with the expression, and since ideas are not protectable, the expression is not protectable. They are not capable of separation. § 102(b) in no event does CR 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.

4. Copyright Law – Class 3 © 2011 Anne S. Mason Merger Merger doctrine results when there are limited ways to express something so that it would hinder competition and the promotion of the arts and sciences to give one a monopoly over it. Courts confuse the two and use them interchangeably. Merger - think of games cases. Focus on whether the idea is capable of various modes of expression.

5. Copyright Law – Class 3 © 2011 Anne S. Mason Eight Categories of Authorship - § 102(a) 1.Literary works; 2.Musical works, including accompanying words; 3.Dramatic works including accompanying music; 4.Pantomimes and choreographic works; 5.Pictorial, graphic and sculptural works; 6.Motion pictures and other audiovisual works; 7.Sound recordings (the aggregation of sounds and not the tangible medium of fixation); and 8.Architectural works.

6. Copyright Law – Class 3 © 2011 Anne S. Mason Literary Works Works other than audiovisual works expressed in words, numbers, or other verbal or numerical symbols… = all works written in words or symbols. Computer software and databases are literary works - fall on different parts of the spectrum of protection. Trade secret and patent protection employed as alternatives. State contract law is frequently used to protect such works. DMCA - restricts circumvention of technological protections.

7. Copyright Law – Class 3 © 2011 Anne S. Mason MILLER v. UNIVERSAL CITY STUDIOS, INC. (143) Whether made-for-TV movie dramatizing an actual kidnapping/buried alive case infringes upon a CR of the book on the same subject matter. Book given to a screen writer to adapt for television. Negotiations ensued for rights but no deal was struck with Miller, books author. District Court instructed jury that research is copyrightable.

8. Copyright Law – Class 3 © 2011 Anne S. Mason MILLER contd Well-settled that CR protection extends only to an authors expression of facts and not to the facts themselves. Author is one to whom anything owes its origin. Facts do not originate with the author of a book about the facts. The discoverer merely discovers and records. Facts are part of the public domain available to everyone.

9. Copyright Law – Class 3 © 2011 Anne S. Mason MILLER contd District court considered the sweat of the brow in the context of avoiding misappropriation - not fair to let someone use the research without the effort. Discusses directory cases since those are also compilations of fact. Compilation is a work that is formed by the collection and assembling of pre-existing 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. If the arrangement and selection has some originality, it is protected but the facts are teased out.

10. Copyright Law – Class 3 © 2011 Anne S. Mason MILLER contd Discusses Hoehling case about Hindenburg books and movies. The IDEA of sabotage not protectable. The line between uncopyrightable expression of facts and copyrightable expression served an important purpose. Balance of public interest in stimulating creativity against publics need for information. Rejects notion that later authors must obtain facts on their own and not rely on others efforts.

11. Copyright Law – Class 3 © 2011 Anne S. Mason Works of Authorship contd Reference to International News Service v. The Associated Press - that case used state law misappropriation to protect hot news. News is facts but was still protected in case where the equities drove the outcome. Character cases pose special problems. Animated characters uniformly held protected by CR but what about literary characters like James Bond? If fully developed, may be protected - check your Circuit.

12. Copyright Law – Class 3 © 2011 Anne S. Mason APPLE COMPUTER v. FRANKLIN COMPUTER CORP. (153) Franklin copied Apples operating system computer programs to achieve compatibility. Franklin does not deny copying; says operating system programs are not subject of CR b/c they are a process, system or method of operation. Computer programs not listed as copyrightable subject matter. Computer program defined in § 101 as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Amendments added § 117 to make clear that it is not infringement for the owner of a copy of a computer program to make copies for archival purposes.

13. Copyright Law – Class 3 © 2011 Anne S. Mason APPLE contd District court had followed lead of WHITE SMITH which 76 Act clearly rejects. If can be perceived with the aid of a machine or device, it is ok. Literary works include works that are not in words. Computer programs embedded in ROM are fixed and subject to protection. The method by which the program instructs the computer is provenance of patent law. The instructions themselves -- how the method is expressed -- is CR issue.

14. Copyright Law – Class 3 © 2011 Anne S. Mason APPLE contd The medium is not the message. Computer program definition does not distinguish between apps or operating system. Idea/expression dichotomy not implicated. Court examines whether there are limited ways of expressing program.

15. Copyright Law – Class 3 © 2011 Anne S. Mason Musical Works, Dramatic Works and Pantomimes and Choreographic Works Musical works include the music and accompanying words. Taking the words alone is infringement of the musical work. Musical works can be incorporated into other works like a motion picture. Arrangements of musical works are derivative works under § 103(a). Critical right is the right to make mechanical reproductions = phonorecords.

16. Copyright Law – Class 3 © 2011 Anne S. Mason Musical Works contd § 115 allows the CR owner the first bite at the apple for the owner to make phonorecord of the work. Thereafter, anyone who pays the statutory royalty can make a cover of the work without permission so long as it doesnt change it too much. Sound recordings protected in 1972. Phonorecords may fix musical works, literary works and sound recordings.

17. Copyright Law – Class 3 © 2011 Anne S. Mason Dramatic Works Plays, screenplays and other dramatizations of works are protectable. Overlap in the 102 categories. Note: § 115 royalties do not pertain to dramatic works, only nondramatic works. ASCAP and BMI (performing rights) and Harry Fox (licensing) only deal with nondramatic works. Dramatic work portrays a story that is intended to be performed. Gives directions for performance rather than merely being narrated or described.

18. Copyright Law – Class 3 © 2011 Anne S. Mason Pantomimes Protectable so long as fixed in a tangible medium. Stock movements and styles are not protectable. Bikram yoga has been protected!!! Must be original.

19. Copyright Law – Class 3 © 2011 Anne S. Mason Pictorial, Graphic and Sculptural Works Very hot area of law is how to separate the aesthetic features of a work from functional. Dont want to give monopoly unless it promotes the Sciences, and monopoly on functional work is its antithesis. Includes two-dimensional and three- dimensional works of authorship.

20. Copyright Law – Class 3 © 2011 Anne S. Mason Pictorial, Graphic and Sculptural Works contd Section 101: the design is pictorial, graphic or sculptural if and only to the extent that such design includes features that can be identified separately from and can exist independently from the utilitarian aspects of the article… Dont take this too literally - physical separability largely rejected. If conceptually separate = enough.

21. Copyright Law – Class 3 © 2011 Anne S. Mason MAZER v. STEIN, 347 U.S. 201 (1954) (175) Famous case about lamps - dancers formed the bases of the lamps. Defendant copied the lamps… = can lamps mfg. copyright his lamp bases? Yes! S. Ct. upheld rules that allow the copyright of the useful objects as to their form but not function. Applies whether the lamps were fitted as lamps or not. Looked at the CRF (under 1909 Act) and deferred to ruling that works belonging to the fine arts are protectable. Rejects notion that the availability of design patents means there is no CR.

22. Copyright Law – Class 3 © 2011 Anne S. Mason PIVOT POINT INTERNATIONAL INC. v. CHARLENE PRODUCTS, INC. (179) Mannequin head used to train hair and makeup. Error in original design that resulted in double hairline copied so it was pretty clear there was copying. Question was whether the work was capable of copyright protection. A useful article is one having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. If not useful, then it is a pictorial, graphic and sculptural work entitled to CR protection.

23. Copyright Law – Class 3 © 2011 Anne S. Mason PIVOT POINT contd Pivot Point looks to taxidermy cases and argues that any utilitarian aspect of the mannequin exists merely to portray the appearance of the animal and the same is true with the Mara design. Charlene says it is useful because it is marketed and used for practicing the art of makeup application. Statutory language provides that the design of a useful article shall be considered CR if and only to the extent the design incorporates pictorial, graphic or sculptural features that can be identified separately and capable of existing independently of the utilitarian aspects of the work. Other tests are to see if the artistic features are the primary impact of the work. Whether the design was significantly influenced by functional considerations. Whether the artistic features can stand alone.

24. Copyright Law – Class 3 © 2011 Anne S. Mason Conceptual Separability Were there aesthetic choices made by the author, similar to the di minimus requirement of originality? Process oriented approach to conceptual separability -- the process of creating the object has some appeal. How is the belt buckle case different from the torso mannequin case? From a bike rack? If conceptually the artistic aspects can be separated from their utilitarian function = okay. Helps that evidence showed use of artistic judgment that is not constrained by functional considerations.

25. Copyright Law – Class 3 © 2011 Anne S. Mason Conceptual Separability contd Is there an anti-competitive effect? Can you use the merger or idea/expression dichotomy? Remember to give the court something comfortable to rely on. Can it stand alone as a work of art like a belt buckle?

26. Copyright Law – Class 3 © 2011 Anne S. Mason Design Patents 35 USC § 171 – 14 year term. Covers ornamental designs, new, novel and non- obvious, and ornamental for articles of manufacture. Costs high and design patents are easy to design around. Can have concurrent protection with copyright.

27. Copyright Law – Class 3 © 2011 Anne S. Mason Motion Pictures and other Audiovisual Works 1909 Act did not protect motion pictures so they used photographs as the category to give them coverage. Audiovisual work is a series of related images which are intrinsically intended to be shown by the use of machines and devices … Together with accompanying sounds, if any … What are related images? Our Pac Man case could protect the audiovisual display of a video game. A work can qualify as an audiovisual work even though it consists of images, which individually qualify for protection as pictorial, graphic or sculptural works. Soundtracks are an integral part of the copyright in a motion picture.

28. Copyright Law – Class 3 © 2011 Anne S. Mason Sound Recordings Works that result from the fixation of a series of musical, spoken, or other sounds (but not those accompanying the motion picture). Sound recording is NOT THE SAME as the musical work captured therein. The musical work is the melody and harmony plus the lyrics. The sound recording is the RENDITION of the musical work. Sound recordings are unique aggregates of sounds.

29. Copyright Law – Class 3 © 2011 Anne S. Mason Sound Recordings contd 102(a)(7) protects the particular sounds in the sound recording not the musical work or the physical object (phonorecord). Must be fixed in tangible medium and must be original like all other copyrightable works. A sound recording is a derivative work of the musical work so it must be done lawfully (right to create derivative works is one of the bundle of rights a CR owner enjoys).

30. Copyright Law – Class 3 © 2011 Anne S. Mason Sound Recordings contd Sound Recording Amendment Act - § 114 duplication of the sound recording fixed after effective date (2/15/72) is infringement of songwriter and publisher but anyone else holding CR to the recording. Imitation or re-recording of musical work not an infringement (not a copy!). Most contracts prohibit the artist from redoing the song for a certain time. Before 1972, look to state laws; after = preemption. Anti-bootlegging provisions are found in 17 U.S.C. § 1101 and 18 U.S.C. § 2319A - prohibit unauthorized recordings, transmissions and communications of public performance and distribution of copies or phonorecords of the same.

31. Copyright Law – Class 3 © 2011 Anne S. Mason Architectural Works When we joined Berne, we had to protect works of architecture. Important to know when the work was created. 1990 - Architectural Works Copyright Protection Act gives full protection to structures and added the 8 th category of protectable subject matter. 12/1/90 is the key date. Plans fall within § 101 as do the elevations and the composition and arrangement of the elements.

32. Copyright Law – Class 3 © 2011 Anne S. Mason Architectural Works contd Applies to buildings constructed after critical date. Prior to that, the separability test was required to weed out functional aspects of the work. § 102(b) limitations still apply - functional features and common designs like windows cannot be protected. Three other limitations: Local landmark, historic preservation, zoning laws; Owner cant stop pictures being taken; and Owner can make changes to the building and alter the work (§ 120(b)).

33. Copyright Law – Class 3 © 2011 Anne S. Mason SHINE v. CHILDS (208) Shine created designs that he says were copied by an architect who was on the panel judging his designs, for use in the new world trade center tower. Defendants say (1) it is not original and functional and thus not subject to CR and (2) if copyrightable, not infringed. Rejects notion that the design has to be capable of construction. Notes that the registration is prima facie evidence of the validity of the copyright and the originality of the work. Rebuttable presumption. Defendants did not present any evidence that the particular combinations of the design elements were not original. Held protectable but not infringed.

34. Copyright Law – Class 3 © 2011 Anne S. Mason Architectural Works contd Common in practice to see cases where homeowner sees a model home, takes the floor plan to her builder and the builder designs a house that incorporates those elements. No question as to copyrightability generally but whether it is infringed -- whether protectable elements and non-functional elements were taken.

35. Copyright Law – Class 3 © 2011 Anne S. Mason In Sum We know the pre-requisites for copyright -- originality and fixed in a tangible medium. We know the illustrative list of works that are capable of statutory copyright protection (§ 102(a)). We know we can go outside of the list as works evolve. Next, we discuss § 103 which are subcategories of § 102 works -- compilations and derivative works.