COPYRIGHT LAW 2002: CLASS 5 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA JANUARY 28, 2002

CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To be able to analyze the copyrightability of compilations of facts after Feist so that, as lawyers, you can provide good advice on whether a given compilation is copyrightable. –B. To be able to analyze the copyrightability of historical works

WRAP-UP POINTS: FIXATION A work must be “fixed” to be copyrightable, that is: embodied in some medium that can be perceived either directly or with a machine or device. A work can only be fixed in one of 2 categories of material object: COPY or PHONORECORD Simultaneously recorded broadcasts are fixed

MORE WRAP-UP: FIXATION But improvisational performances that are not broadcast are not fixed, even if simultaneously recorded. For live musical performances, the anti- bootlegging provisions (Title 17 s. 1101) give a non-copyright remedy for unauthorized fixation of sound recordings and music videos. The Eleventh Circuit has found this a constitutional exercise of Commerce Clause power.

WRAP-UP HYPO The Houston Cougars football team was performing badly and Coach Yeoman was in danger of losing his job. As a desperation measure, he implemented the “veer option”. By the next year the veer and its triple option led the Houston Cougars to an 8-2 record and the first of three straight college offensive titles. Other coaches instruct their players to emulate the play. Can Coach Yeoman argue successfully that the veer option is copyrightable?

WRAP-UP: COMPILATIONS AND COLLECTIVE WORKS Definitions of “compilations” and “collective works” appear at section 101 of the current Copyright Act.

SWEAT OF THE BROW DOCTRINE What is the “sweat of the brow” doctrine? Is it still good law?

SWEAT OF THE BROW DOCTRINE Under the 1909 Act, some courts departed from strict copyright law principles and applied the “sweat of the brow doctrine” that provided copyright protection to collections of data which had required much hard work to prepare (“sweat of the brow”). See p. 122 of your CB The Supreme Court definitively rejected this doctrine in its 1992 Feist decision.

The Feist Case What did Feist do that upset Rural and caused Rural to sue for copyright infringement? Why did the District Court grant summary judgment to Rural? Did the Tenth Circuit affirm or reverse? How did the Supreme Court rule? Why?

Originality What did Justice O’Connor say about the originality requirement?

Originality What did Justice O’Connor say about the originality requirement? “Originality does not signify novelty.” “To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark “no matter how crude, humble or obvious” it might be.

COPYRIGHTABILITY OF COMPILATIONS According to the Supreme Court in Feist, a compilation only has “thin” copyright protection. For a compilation to be copyrightable, it must be an original work of authorship by virtue of the particular selection, coordination, or arrangement of the facts within it.

Was Rural’s Compilation Sufficiently Original?

Justice O’Connor held that Rural’s selection of listings was “obvious” in its selection and lacked the “modicum of creativity” required for copyrightability. Also the selection was not dictated by Rural but by state law. The coordination and arrangement of facts, which was alphabetical, was also not original.

Fairness Isn’t it unfair that others can use the fruits of the compiler’s labor without compensation? See p. 121 of your CB. Do you agree?

After Feist Most courts that have applied Feist have used it only to invalidate copyrights for works that Nimmer has described as “banal”, for example arrangements of the rentable space of a building in vertical columns, floor-by-floor of a building.

CCC Information Services v. Maclean Hunter What did CCC copy that upset Maclean Hunter? Why did CCC sue?

CCC Information Services v. Maclean Hunter CCC uses and resells the Red Book used car valuations (published by Maclean) CCC brought suit seeking a declaratory judgment that it incurred no liability to Maclean under the copyright law by taking and republishing this Red Book material. Maclean then counterclaim for copyright infringement. The district judge enters summary judgment in favor of CCC

CCC v. Maclean Does the Second Circuit find the Red Book sufficiently original to be copyrightable? Why or why not? Is this correct, under Feist? Does the Second Circuit find that the merger doctrine applies? Why or why not? Had the works fallen into the public domain?

BellSouth Advertising v. Donnelley Did the 11th Circuit find that Donnelly had infringed BAPCO’s copyright by creating a computer database with certain information about BAPCO subscribers and printing a lead sheet which it used to contact subscribers? Describe the reasoning of the lone dissenting judge? Who is right, in your opinion?

Hypo Emily makes five plastic signs. Two say “For Sale” and three say “For Rent”. She arranges them in order of descending size and packages them as a set. She argues that they are copyrightable as a compilation. Should this argument succeed? Why or why not?

Another Hypo Jon compiles a list of all 50 states. Can she argue that her list is copyrightable? What if Jon compiles a list of the 12 states containing the best dressed models? Does it matter if Jon arranges the states in alphabetical order?

HYPO: FURNITURE DESIGNS Can an arrangement of furniture in a showroom be copyrightable? See Baldine v. Furniture Comfort Corp., 956 F. Supp. 580 (M.D.N.C. 1996)

OTHER KINDS OF COMPILATIONS Can a greeting card be copyrightable as a compilation? See Roth v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) Can a T-shirt be copyrightable as a compilation? See Matthews v. Freeman, 157 F.3d 25 (1st Cir. 1998) p. 139 CB Can a videogame be copyrightable as a compilation? Atari v. Oman, 979 F.2d 242 (D.C. Cir. 1992) p. 138 CB

Is any Sweat Required for Something to Be Copyrightable? See Rockford Map Publishers case (CB p. 129)

COPYRIGHT IN FACTUAL NARRATIVES To what extent are historical facts copyrightable?