COPYRIGHT LAW 2006 CLASS 4 Columbus School of Law The Catholic University of America Professor Fischer Jan. 19, 2006

Burrow-Giles Lithographic Society v. Sarony (1884) CB 29 What were the 2 important constitutional questions on which the Supreme Court had to rule in this case?

Some other Photos by Napoleon Sarony

Bleistein v. Donaldson Lithographing Co. (1903) CB 33 Is this decision consistent with the Patent and Copyright clause?

Alfred Bell & Co. v. Catalda (2d Cir. 1951) CB 51 Were the plaintiff’s mezzotints copyrightable, according to Justice Frank? Do you agree? Why or why not?

COPYRIGHTABILITY Two statutory requirements for copyright protection in s. 102(a) 1. Original work of authorship 2. Fixation

An Originality Question Jane writes a song. Jane never plays her song for anyone else, and consequently Emma has never heard Jane’s song. Suspend credulity and imagine that Emma writes a song that is identical to Jane’s. Is Emma’s song copyrightable?

Learned Hand: Independent Creation Requirement “...[I]f by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.” Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940)

Can “Dr. Nerd” Copyright a heretofore undiscovered and unpublished manuscript of a Shakespeare play that he found while exploring the stacks of Mullen Library?

Exact Copies Arthur, a forger, creates an exact reproduction of Rembrandt’s 1629 Self Portrait. Experts cannot distinguish Arthur’s copy from the original Is Arthur an “author” for the purposes of copyright?

In Bell v. Catalda, Justice Frank stated: “A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations [to be considered original enough to be copyrighted]. Having hit on such a variation unintentionally, the “author” may adopt it as his own and copyright it.”

COPYRIGHTABILITY: ORIGINALITY REQUIREMENT Two aspects: (1) independent creation (2) at least some minimal degree of creativity See Feist, 499 U.S. 340 (1991) – CB p. 75

ORIGINALITY OF LABELS/SLOGANS TO WHAT EXTENT ARE THESE COPYRIGHTABLE ?

Copyright Office Regulation provides that some works are not copyrightable, including: “Words and short phrases, such as names, titles, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” – 37 C.F.R. § 202.1(a)

WORKS OF AUTHORSHIP See s. 102(a) (1)-(8) Overlapping? Exclusive?

STAND-UP COMICS AND COPYRIGHT Jay Leno: “I get ripped off. Everybody gets ripped off. There’s nothing you can do about it. You just learn to write faster.”

FIXATION Like originality, fixation is required for a work to be copyrightable It is a constitutional requirement - a work must be a “writing” to be copyrightable

FIXATION Second requirement for copyrightability Constitutional Requirement Statutory Requirement

FIXATION REQUIREMENT See 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.”

FIXATION REQUIREMENT See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

SPORTING AND OTHER EVENTS Is the Macys Thanksgiving Day parade fixed?

Definition of Fixation 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Separate definition of “transmission” Is this constitutional?

FIXATION OF BROADCASTS See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

IS THE BROADCAST PART OF THE FIXATION DEFINITION CONSTITUTIONAL? 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.