2. COPYRIGHT LAW 2002: CLASS 7 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA FEBRUARY 4, 2002

3. CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To be able to analyze the copyrightability of derivative –B. To understand the extent to which computer programs are copyrightable. –C. To be able to analyze the copyrightability of a pictorial, graphic, or sculptural work

4. WRAP UP POINTS: HISTORICAL WORKS Copyright law does not protect historical facts, on the ground that such information is not an original work of authorship. However, a historical work can be copyrightable under the principles applicable to compilations - the selection, arrangement and compilation of facts may be copyrightable if sufficiently original.

5. WRAP-UP POINTS: SUI GENERIS DATABASE PROTECTION The European Union has issued a directive requiring the EU member states to provide sui generis protection to databases by enacting legislation preventing extraction or reutilization of a substantial part of databases created by a substantial investment of resources or time. U.S. copyright law does not protect investment or sweat of the brow in databases. Draft legislation has been proposed but not yet enacted. You should decide if such legislation is a. necessary or desirable b. constitutional

6. WRAP UP POINTS ON DERIVATIVE WORKS Derivative works are defined in Section 101 of the 1976 Copyright Act. They are basically a recasting or transformation of another work either in the public domain or copyrighted. Almost all works can in a way be viewed as derivative works (Justice Story in Emerson v. Davies) Standard for originality in Batlin v. Snyder is whether there is some substantial variation from the underlying work, not merely a trivial variation.

7. Derivative Works: Harassment Fears Batlin majority: “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.”

8. Durham v. Tomy (2d Cir. 1980) CB p. 171 What is a more than trivial variation? Did the 2d Circuit find that the Tomy authorized reproductions of Mickey Mouse were original? Why or why not? (Hint: Harrassment)

9. Gracen v. Bradford Exchange CB p. 174 What was the issue in this case? What test for originality did the 7th circuit apply? What was the 7 th Circuit afraid of?

10. GRACEN COURT “[I]f the difference between the original and A’s reproduction is slight, the difference between A’s and B’s reproduction will also be slight, so that if B had access to A’s reproductions, the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself.”

11. Mona Lisa Reproductions

12. INCONSISTENT APPLICATION OF BATLIN IN THE SECOND CIRCUIT? Is TOMY consistent with the EDEN TOYS case, the SHERRY case, or the ERG case? How can we reconcile these cases?

13. TWO SUGGESTIONS FOR RECONCILING 2d CIRCUIT CASES 1. Are differences immediately discernible? 2. What is the purpose of making the changes -- functionality or aesthetics?

14. MALJACK PRODUCTIONS: A DIFFERENT TEST FOR DERIV. WORKS IN THE 9th CIRCUIT? Why was the 1963 version of McClintock! In the public domain? How did the 1993 version of McClintock differ from the 1963 public domain version? Was the 1993 version copyrightable as a derivative work, according to the District Court (C.D. Cal.)? Would you affirm this decision?

15. 9th Circuit: A Lesser Test for Originality for Derivative Works Seems to follow Catalda case, which required only a modest grade of originality (a de minimis standard). Batlin seems to suggest some higher standard of creativity required. See e.g. cases like the Mirage case - mounting artworks on tiles found to be a derivative work (856 F. 2d. 1341 (1988))

16. MIRAGE v. Albuquerque A.R.T. (9th Cir. 1988) Mirage published Nagel/owns coyrights Albuquerque bought books and mounted them on tiles Were they derivative works? If so, infringed Mirage’s rights

17. PHOTOGRAPHS OF MANUFACTURED PRODUCTS CB 177 Is a photo of a manufactured product, like a vodka bottle or a decorative frame by a commercial photographer a derivative work? Is a photograph of a painting a derivative work? Is there really any difference? In assessing copyrightability should it make a difference whether a photograph is of a vodka bottle, a mountain, or an old master painting?

18. SLAVISH COPIES Is a scale reproduction of the Rodin Hand of God sculpture copyrightable? What about a photograph of this sculpture? A CD-Rom copy of a painting in the public domain?

19. COMPUTER PROGRAMS To what extent are computer programs copyrightable? What other kinds of IP protection could apply to a computer program? To what extent should computer programs be protected. Does the computer itself act as an author? Does it matter that a computer program is a set of instructions to the computer?

20. COMPUTER PROGRAMS To what extent are computer programs copyrightable?

21. COMPUTER PROGRAMS The statutory definition of “literary works” includes computer programs and data bases. It includes all “verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as... tapes, discs, or cards, in which they are embodied.” 17 U.S.C. § 101. House Judiciary Committee Report (1976)stated that this definition includes computer programs and databases to the extent that they include authorship in the expression of original ideas.

22. COMPUTER PROGRAMS CONTU recommended that computer software should be protectable under copyright law (1978) If there was any doubt about whether computer programs were copyrightable, the Computer Software Copyright Act of 1980 (following CONTU’s recommendations) laid it to rest - added the definition of “computer software” in section 101. See also s. 117 - reproducing computer software program = infringement unless it falls within section 117 exemption.

23. COMPUTER PROGRAMS Congress has recognized the importance of computer software as a copyrightable work: “Software.. Is of pivotal importance to the United States, which is the world’s leader in this unique form of creativity.” H.R. Rep. No. 101-735, 101st Cong. 2d Sess. 4 (1990) (relating to the Computer Software Rental Amendment Act of 1990)

24. Apple Computer Inc. v. Franklin (3d Cir. 1983) Is a program expressed in object code copyrightable? Is a program expressed in source code copyrightable? Is a computer operating system copyrightable? Is a computer program embodied on ROM copyrightable?

25. A Dissenting View In CONTU, Commissioner John Hersey highlighted that programs are different from other works of authorship He thought that copyright protection should “not extend to a computer program in the form in which it is capable of being used to control computer operations.” Should it matter if the program is intended to be read or comprehended by humans or by a machine? Despite Hersey’s views, which have been echoed by some other commentators, Apple is settled law.