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Copyright Law – Ronald W. Staudt Class 5 September 12, 2013.

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1 Copyright Law – Ronald W. Staudt Class 5 September 12, 2013

2 News today IP Law360 Sept. 12, 2013 Doyle Estate Says It's No Mystery, Sherlock Still Copyrighted The estate of Sir Arthur Conan Doyle on Tuesday urged an Illinois judge to rule that the character of Sherlock Holmes will remain copyright protected until 2022 and reject an author's effort to make the famous detective free for anyone to use. Beastie Boys Must Face R&B Label's Copyright Suit Hip-hop group Beastie Boys may have committed copyright infringement when it used portions of songs owned by TufAmerica Inc., a New York federal judge ruled Tuesday, refusing to dismiss the record label's suit entirely.

3 Idea/Expression Dichotomy 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.

4 Idea/Expression Dichotomy zBaker v. Selden yCentral doctrine – ideas/systems/recipes- are out—copyright protects only expression. ySecondary themes xExplain v. use “…not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.” x“Blank account books are not the subject of copyright…”

5 Idea/Expression Dichotomy SMS v. ASP (1 st Cir. 2009) Description of process (office comm. manual) can be expressive, even if pedantic. Possibly in. Morrissey v. Procter & Gamble Thin v. Merger --merger doctrine extended– simple contest rules out Continental Casualty Legal form in but thin Publications International v. Meredith Recipes without expressive elaboration out Bibbero Systems & Utopia Provider Systems —forms must communicate information, not collect information based on CFR Title 37, Sect. 202.1 which omits “blank forms…designed for recording information and do not in themselves convey information.” CFR Title 37, Sect. 202.1

6 Compilations and derivative works z§ 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 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. (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 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.

7 Compilations z§ 101. Definitions *** A "compilation" is 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.

8 Cases zFeist Publications, Inc v. Rural Telephone Service yRockford Map gloss zNash v. CBS yWainwright Securities yQuestions p. 129

9 Bleistein v. Donaldson 188 U.S. 239 (1903) zJustice Holmes: “The least pretentious picture has more originality in it than directories and the like, which may be copyrighted.”

10 Jeweler’s Circular Publishing and Rockford Map “The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number, acquires material of which he is the author…” Jeweler’s Circular, 1922. “All concede, …that "a second compiler may check back his independent work upon the original compilation." The right to "check back" does not imply a right to start with the copyrighted work. Everyone must do the same basic work, the same "industrious collection." "A subsequent compiler is bound to set about doing for himself what the first compiler has done." … The second compiler must assemble the material as if there had never been a first compilation; only then may the second compiler use the first as a check on error. “ Rockford Map, 1985.


12 Feist black letter zfacts are not copyrightable zcompilations of facts generally are z100 uncopyrightable facts do not magically change their status when gathered together in one place zTo qualify for copyright protection, a work must be original to the author yindependently created by the author (as opposed to copied from other works), and yat least some minimal degree of creativity xtwo poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.

13 Feist black letter (cont.) zOriginality is a constitutional requirement. zfacts do not owe their origin to an act of authorship. zchoices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. zWhere the compilation author adds no written expression but rather lets the facts speak for themselves,… the only conceivable expression is the manner in which the compiler has selected and arranged the facts. zThis inevitably means that the copyright in a factual compilation is thin

14 Feist black letter: “sweat of the brow” zThe primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts zThe "sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement -- the compiler's original contributions -- to the facts themselves. zto make clear that the copyright in a compilation did not extend to the facts themselves, Congress enacted § 103. zThe statute- § 101--identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation: yCollection and assembly of preexisting material ySelection coordination and arrangement, and yCreation, by #2, of an “original” work of authorship

15 Feist application z… did Feist, by taking 1,309 names, towns, and telephone numbers from Rural's white pages, copy anything that was "original" to Rural? yCertainly, the raw data does not satisfy the originality requirement. Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not "'owe its origin'" to Rural. yIn preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity. yTypical, obvious, age-old, commonplace, matter of course, inevitable… zcopyright rewards originality, not effort

16 Questions p. 122 What is not “obvious” or “commonplace” adding new categories to phone book? all Warhol museums Is “sweat of the brow” necessary even if not sufficient? Rockford Map? “…The input of time is irrelevant. A photograph may be copyrighted although it is the work of an instant and its significance may be accidental.”

17 People viewing the dead body of John Dillinger (Associated Press)

18 Nash zFacts zAuthors as creators and borrowers zNash as novelist v. historian zToskvig and Hoehling movie linkHoehlingmovie link zNash holding v. Nash language zWainwright Securities zQuestions pp. 129 - 130 xSelection, coordination & arrangement of historical facts xWashington Post Pulitzer Prize hoax

19 Crane v. Poetic Products 593 F. Supp. 2d 585 (S.D. N.Y. 2009) “As applied here, Hoehling and Feist result in the following conclusion: the theory that Pope John Paul I was murdered and the facts surrounding his death are not protectable elements of In God's Name under the Copyright Act, but IGN's expression of that theory and surrounding facts -- its selection, coordination, and arrangement of its theories and facts -- is protectable.”

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